[_] |
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
OR
|
|
[X] |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the fiscal year ended December 31, 2012
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|
[_] |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the transition period from to
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|
[_] |
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of class
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Name of exchange on which registered
|
|
Common Stock, $0.01 par value
|
The NASDAQ Stock Market LLC
|
|
Preferred Stock Purchase Rights
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The NASDAQ Stock Market LLC
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US GAAP x
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International Financial Reporting Standards as issued by the International Accounting Standards Board o
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Other
|
o |
|
·
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our future operating or financial results;
|
|
·
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statements about planned, pending or recent acquisitions, business strategy and expected capital spending or operating expenses, including drydocking, surveys, upgrades and insurance costs;
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|
·
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our ability to procure or have access to financing, our liquidity and the adequacy of cash flow for our operations;
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·
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our continued borrowing availability under our debt agreements and compliance with the covenants contained therein;
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·
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our substantial leverage, including our ability to generate sufficient cash flow to service our existing debt and the incurrence of substantial indebtedness in the future;
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·
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our ability to successfully employ both our existing and newbuilding drybulk and tanker vessels and drilling units;
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·
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our drilling contract backlog, drilling contract commencements, drilling contract terminations, drilling contract option exercises, drilling contract revenues, drilling contract awards and rig and drillship mobilizations and performance provisions,
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·
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our future capital expenditures and investments in the construction, acquisition and refurbishment of our vessels and drilling units (including the amount and nature thereof and the timing of completion thereof, the delivery and commencement of operations dates, expected downtime and lost revenue);
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·
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statements about drybulk and tanker shipping market trends, charter rates and factors affecting supply and demand;
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·
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statements about the offshore drilling market, including supply and demand, utilization rates, dayrates,
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·
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our expectations regarding the availability of vessel and drilling unit acquisitions; and
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·
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anticipated developments with respect to pending litigation.
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PART I
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1
|
|
Item 1.
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Identity of Directors, Senior Management and Advisers
|
1
|
Item 2.
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Offer Statistics and Expected Timetable
|
1
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Item 3.
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Key Information
|
1
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Item 4.
|
Information on the Company
|
47
|
Item 4A.
|
Unresolved Staff Comments
|
77
|
Item 5.
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Operating and Financial Review and Prospects
|
77
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Item 6.
|
Directors and Senior Management
|
124
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Item 7.
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Major Shareholders and Related Party Transactions
|
131
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Item 8.
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Financial Information
|
138
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Item 9.
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The Offer and Listing
|
140
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Item 10.
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Additional Information
|
141
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Item 11.
|
Quantitative and Qualitative Disclosures about Market Risk
|
151
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Item 12.
|
Description of Securities Other than Equity Securities
|
153
|
PART II
|
154
|
|
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies
|
154
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Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
154
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Item 15.
|
Controls and Procedures
|
154
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Item 16A.
|
Audit Committee Financial Expert
|
155
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Item 16B.
|
Code of Ethics
|
155
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Item 16C.
|
Principal Accountant Fees and Services
|
155
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Item 16D.
|
Exemptions from the Listing Standards for Audit Committees
|
156
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
156
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Item 16F.
|
Changes in Registrant’s Certifying Accountant
|
156
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Item 16G.
|
Corporate Governance
|
156
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Item 16H.
|
Mine Safety Disclosure
|
156
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PART III.
|
157
|
|
Item 17.
|
Financial Statements
|
157
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Item 18.
|
Financial Statements
|
157
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Item 18.1.
|
Schedule I – Condensed Financial Information of Dryships Inc. (Parent Company only)
|
157
|
Item 19.
|
Exhibits
|
157
|
|
|
Year Ended December 31,
|
|
|||||||||||||||||
(In thousands of Dollars except per share and share data)
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||||
STATEMENT OF OPERATIONS
|
|
|
|
|
|
|||||||||||||||
Total revenues
|
|
$
|
1,080,702
|
|
$
|
819,834
|
|
|
$
|
859,745
|
|
|
$
|
1,077,662
|
|
|
$
|
1,210,139
|
|
|
Voyage expenses
|
|
|
53,172
|
|
|
28,779
|
|
|
|
27,433
|
|
|
|
20,573
|
|
|
|
30,012
|
|
|
Vessels, drilling rigs and drillships operating expenses
|
|
|
165,891
|
|
|
201,887
|
|
|
|
190,614
|
|
|
|
373,122
|
|
|
|
649,722
|
|
|
Depreciation and amortization
|
|
|
157,979
|
|
|
196,309
|
|
|
|
192,891
|
|
|
|
274,281
|
|
|
|
335,458
|
|
|
Loss/(gain) on sale of assets, net
|
|
|
(223,022
|
)
|
|
|
(2,045
|
)
|
|
|
(9,435
|
)
|
|
|
3,357
|
|
|
|
1,179
|
|
Gain on contract cancellation
|
|
|
(9,098
|
)
|
|
|
(15,270
|
)
|
|
|
—
|
|
|
|
(6,202
|
)
|
|
|
—
|
|
Contract termination fees and forfeiture of vessels/ vessels under construction deposits
|
|
|
160,000
|
|
|
259,459
|
|
|
|
—
|
|
|
|
—
|
|
|
|
41,339
|
|
|
Vessel impairment charge
|
|
|
—
|
|
|
1,578
|
|
|
|
3,588
|
|
|
|
144,688
|
|
|
|
—
|
|
|
Goodwill impairment charge
|
|
|
700,457
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Gain from vessel insurance proceeds
|
|
|
—
|
|
|
—
|
|
|
|
—
|
|
|
|
(25,064
|
)
|
|
|
—
|
|
|
General and administrative expenses – cash(1)
|
|
|
58,225
|
|
|
55,871
|
|
|
|
64,376
|
|
|
|
96,679
|
|
|
|
132,636
|
|
|
General and administrative expenses – non-cash
|
|
|
31,502
|
|
|
38,070
|
|
|
|
24,200
|
|
|
|
26,568
|
|
|
|
13,299
|
|
|
Legal settlements and other, net
|
— | — | — | — | (9,360 | ) |
Operating income/(loss)
|
|
|
(14,404
|
)
|
|
|
55,196
|
|
|
|
366,078
|
|
|
|
169,660
|
|
|
|
15,854
|
|
Interest and finance costs
|
|
|
(113,194
|
)
|
|
|
(84,430
|
)
|
|
|
(66,825
|
)
|
|
|
(146,173
|
)
|
|
|
(210,128
|
)
|
Interest income
|
|
|
13,085
|
|
|
|
10,414
|
|
|
|
21,866
|
|
|
|
16,575
|
|
|
|
4,203
|
|
Gain/(loss) on interest rate swaps
|
|
|
(207,936
|
)
|
|
|
23,160
|
|
|
|
(120,505
|
)
|
|
|
(68,943
|
)
|
|
|
(54,073
|
)
|
Other, net
|
|
|
(12,271
|
)
|
|
|
(3,574
|
)
|
|
|
10,272
|
|
|
|
9,023
|
|
|
|
(492
|
)
|
Income/(loss) before income taxes and equity in loss of investee
|
|
|
(334,720)
|
|
|
766
|
|
|
|
210,886
|
|
|
|
(19,858
|
)
|
|
|
(244,636
|
)
|
|
Income taxes
|
|
|
(2,844
|
)
|
|
|
(12,797
|
)
|
|
|
(20,436
|
)
|
|
|
(27,428
|
)
|
|
|
(43,957
|
)
|
Equity in loss of investee
|
|
|
(6,893
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
Net Income/(loss)
|
|
|
(344,457
|
)
|
|
|
(12,031
|
)
|
|
|
190,450
|
|
|
|
(47,286
|
)
|
|
|
(288,593
|
)
|
Less: Net (income)/loss attribute to non-controlling interests
|
|
|
(16,825
|
)
|
|
|
(7,178
|
)
|
|
|
(2,123
|
)
|
|
|
(22,842
|
)
|
|
|
41,815
|
|
Net income/(loss) attributable to Dryships Inc.
|
|
|
(361,282
|
)
|
|
|
(19,209
|
)
|
|
|
188,327
|
|
|
|
(70,128
|
)
|
|
|
(246,778
|
)
|
Net Income/ (loss) attributable to common stockholders
|
|
|
(361,809
|
)
|
|
|
(26,706
|
)
|
|
|
172,564
|
|
|
|
(74,594
|
)
|
|
|
(246,778
|
)
|
Earnings/(loss) per common share attributable to Dryships Inc. common stockholders, basic
|
|
$
|
(8.11
|
)
|
|
$
|
(0.13
|
)
|
|
$
|
0.64
|
|
|
$
|
(0.21
|
)
|
|
$
|
(0.65
|
)
|
Weighted average number of common shares, basic
|
|
|
44,598,585
|
|
|
209,331,737
|
|
|
|
268,858,688
|
|
|
|
355,144,764
|
|
|
|
380,159,088
|
|
|
Earning / (loss) per common share attributable to Dryships Inc. common stockholders, diluted
|
|
$
|
(8.11
|
)
|
|
$
|
(0.13
|
)
|
|
$
|
0.61
|
|
|
$
|
(0.21
|
)
|
|
$
|
(0.65)
|
|
Weighted average number of common shares, diluted
|
|
|
44,598,585
|
|
|
209,331,737
|
|
|
|
305,425,852
|
|
|
|
355,144,764
|
|
|
|
380,159,088
|
|
|
Dividends declared per share
|
|
$
|
0.80
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
(1)
|
Cash compensation to members of our senior management and our directors amounted to $9.7 million, $5.3 million, $11.8 million, $6.8 million and $ 5.7 million for the years ended December 31, 2008, 2009, 2010, 2011 and 2012, respectively.
|
|
|
As of and for the
Year Ended December 31,
|
|
|||||||||||||||||
(In thousands of Dollars except per share and share data and fleet data)
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||||
Current assets
|
|
$
|
720,427
|
|
|
|
1,180,650
|
|
|
|
1,065,110
|
|
|
|
570,077
|
|
|
|
903,529
|
|
Total assets
|
|
|
4,842,680
|
|
|
|
5,806,995
|
|
|
|
6,984,494
|
|
|
|
8,621,689
|
|
|
|
8,878,491
|
|
Current liabilities, including current portion of long-term debt
|
|
|
2,525,048
|
|
|
|
1,896,023
|
|
|
|
935,435
|
|
|
|
756,263
|
|
|
|
1,573,529
|
|
Total long-term debt, including current portion
|
|
|
3,158,870
|
|
|
|
2,684,684
|
|
|
|
2,719,692
|
|
|
|
4,241,835
|
|
|
|
4,386,715
|
|
DryShips common stock
|
|
|
706
|
|
|
|
2,803
|
|
|
|
3,696
|
|
|
|
4,247
|
|
|
|
4,247
|
|
Number of shares outstanding
|
|
|
70,600,000
|
|
|
|
280,326,271
|
|
|
|
369,649,777
|
|
|
|
424,762,094
|
|
|
|
424,762,244
|
|
Dryships Inc's equity
|
|
|
1,291,572
|
|
|
|
2,812,542
|
|
|
|
3,255,827
|
|
|
|
3,145,328
|
|
|
|
2,846,460
|
|
OTHER FINANCIAL DATA
|
|
|
|
|
|
|||||||||||||||
Net cash provided by operating activities
|
|
|
540,129
|
|
|
|
294,124
|
|
|
|
476,801
|
|
|
|
349,205
|
|
|
|
237,529
|
|
Net cash used in investing activities
|
|
|
(2,110,852
|
)
|
|
|
(169,950
|
)
|
|
|
(1,680,748
|
)
|
|
|
(1,822,394
|
)
|
|
|
(389,947
|
)
|
Net cash provided by financing activities
|
|
|
1,762,769
|
|
|
|
265,881
|
|
|
|
902,308
|
|
|
|
1,332,802
|
|
|
|
243,225
|
|
EBITDA (1)
|
|
|
(100,350
|
)
|
|
|
263,913
|
|
|
|
446,613
|
|
|
|
361,179
|
|
|
|
338,562
|
|
DRYBULK FLEET DATA:
|
|
|
|
|
|
||||||||||||||||
Average number of vessels (2)
|
|
|
38.56
|
|
|
|
38.12
|
|
|
|
37.21
|
|
|
|
35.80
|
|
|
|
35.67
|
|
|
Total voyage days for drybulk carrier fleet (3)
|
|
|
13,938
|
|
|
|
13,700
|
|
|
|
13,430
|
|
|
|
12,831
|
|
|
|
13,027
|
|
|
Total calendar days for drybulk carrier fleet (4)
|
|
|
14,114
|
|
|
|
13,914
|
|
|
|
13,583
|
|
|
|
13,068
|
|
|
|
13,056
|
|
|
Drybulk carrier fleet utilization (5)
|
|
|
98.75
|
%
|
|
|
98.46
|
%
|
|
|
98.87
|
%
|
|
|
98.19
|
%
|
|
|
99.78%
|
|
|
(In Dollars)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
AVERAGE DAILY RESULTS
|
|
|
|
|
|
||||||||||||||||
Time charter equivalent (6)
|
|
|
57,980
|
|
|
|
30,336
|
|
|
|
32,045
|
|
|
|
26,912
|
|
|
|
15,896
|
|
|
Vessel operating expenses (7)
|
|
|
5,644
|
|
|
|
5,434
|
|
|
|
5,245
|
|
|
|
6,271
|
|
|
|
5,334
|
|
|
TANKER FLEET DATA
|
|
|
|
|
|
||||||||||||||||
Average number of vessels (2)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
2.64
|
|
|
|
6.27
|
|
|
Total voyage days for tanker fleet (3)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
963
|
|
|
|
2,293
|
|
|
Total calendar days for tanker fleet (4)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
963
|
|
|
|
2,293
|
|
|
Tanker fleet utilization
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
100
|
%
|
|
|
100%
|
|
|
(In Dollars)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
AVERAGE DAILY RESULTS
|
|
|
|
|
|
||||||||||||||||
Time Charter Equivalent (6)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
12,592
|
|
|
|
13,584
|
|
|
Vessel Operating Expenses (7)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
9,701
|
|
|
|
7,195
|
|
(1)
|
EBITDA, a non-U.S. GAAP measure, represents net income before interest, taxes, depreciation and amortization. EBITDA does not represent and should not be considered as an alternative to net income or cash flow from operations, as determined by U.S. GAAP and our calculation of EBITDA may not be comparable to that reported by other companies. EBITDA is included herein because it is a basis upon which the Company measures its operations and efficiency. Please see below for a reconciliation of EBITDA to net income attributable to DryShips, the most directly comparable financial measure calculated in accordance with U.S. GAAP.
|
(2)
|
Average number of vessels is the number of vessels that constituted the respective fleet for the relevant period, as measured by the sum of the number of days each vessel in that fleet was a part of the fleet during the period divided by the number of calendar days in that period.
|
(3)
|
Total voyage days for the respective fleet are the total days the vessels in that fleet were in the Company's possession for the relevant period net of off-hire days associated with drydockings or special or intermediate surveys.
|
(4)
|
Calendar days are the total days the vessels in that fleet were in the Company's possession for the relevant period including off-hire days associated with major repairs, drydockings or special or intermediate surveys.
|
(5)
|
Fleet utilization is the percentage of time that the vessels in that fleet were available for revenue-generating voyage days, and is determined by dividing voyage days by fleet calendar days for the relevant period.
|
(6)
|
Time charter equivalent, or TCE, is a measure of the average daily revenue performance of a vessel on a per voyage basis. The Company's method of calculating TCE is determined by dividing voyage revenues (net of voyage expenses) by voyage days for the relevant time period. Voyage expenses primarily consist of port, canal and fuel costs that are unique to a particular voyage, which would otherwise be paid by the charterer under a time charter contract, as well as commissions. TCE revenues, a non-U.S. GAAP measure, provides additional meaningful information in conjunction with revenues from our vessels, the most directly comparable U.S. GAAP measure, because it assists Company's management in making decisions regarding the deployment and use of its vessels and in evaluating their financial performance. TCE is also a standard shipping industry performance measure used primarily to compare period-to-period changes in a shipping company's performance despite changes in the mix of charter types (i.e., spot charters, time charters and bareboat charters) under which the vessels may be employed between the periods. The following table reflects the calculation of our TCE rates for the periods presented.
|
(7)
|
Daily vessel operating expenses, which includes crew costs, provisions, deck and engine stores, lubricating oil, insurance, maintenance and repairs, is calculated by dividing vessel operating expenses by fleet calendar days for the relevant time period.
|
|
|
For the
Year Ended December 31,
|
|
|||||||||||||||||
(Dollars in thousands)
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||||
Net income/(loss) attributable to Dryships Inc.
|
|
|
(361,282
|
)
|
|
|
(19,209
|
)
|
|
|
188,327
|
|
|
|
(70,128
|
)
|
|
|
(246,778)
|
|
Add: Net interest expense
|
|
|
100,109
|
|
|
|
74,016
|
|
|
|
45,959
|
|
|
|
129,598
|
|
|
|
205,925
|
|
Add: Depreciation and amortization
|
|
|
157,979
|
|
|
|
196,309
|
|
|
|
192,891
|
|
|
|
274,281
|
|
|
|
335,458
|
|
Add: Income taxes
|
|
|
2,844
|
|
|
|
12,797
|
|
|
|
20,436
|
|
|
|
27,428
|
|
|
|
43,957
|
|
EBITDA
|
|
|
(100,350
|
)
|
|
|
263,913
|
|
|
|
447,613
|
|
|
|
361,179
|
|
|
|
338,562
|
|
Drybulk Carrier Segment
|
|
Year Ended December 31,
|
|
|||||||||||||||||
(In thousands of Dollars, except for TCE rates, which are expressed in Dollars and voyage days)
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||||
Voyage revenues
|
|
|
861,296
|
|
|
|
444,385
|
|
|
|
457,804
|
|
|
|
365,361
|
|
|
|
227,141
|
|
Voyage expenses
|
|
|
(53,172
|
)
|
|
|
(28,779
|
)
|
|
|
(27,433
|
)
|
|
|
(20,047
|
)
|
|
|
(20,064)
|
|
Time charter equivalent revenues
|
|
|
808,124
|
|
|
|
415,606
|
|
|
|
430,371
|
|
|
|
345,314
|
|
|
|
207,077
|
|
Total voyage days for drybulk fleet
|
|
|
13,938
|
|
|
|
13,700
|
|
|
|
13,430
|
|
|
|
12,831
|
|
|
|
13,027
|
|
Time charter equivalent (TCE) rate
|
|
|
57,980
|
|
|
|
30,336
|
|
|
|
32,045
|
|
|
|
26,912
|
|
|
|
15,896
|
|
Τanker Segment
|
Year Ended December 31, | ||||||||||
(In thousands of Dollars, except for TCE rates, which are expressed in Dollars and voyage days) |
2008
|
2009
|
2010
|
2011
|
2012
|
||||||
Voyage revenues
|
|
|
-
|
-
|
-
|
12,652
|
41,095
|
||||
Voyage expenses
|
|
-
|
-
|
-
|
(526)
|
(9,948)
|
|||||
Time charter equivalent revenues
|
|
|
-
|
-
|
-
|
12,126
|
31,147
|
||||
Total voyage days for drybulk fleet
|
|
|
-
|
-
|
963
|
2,293
|
|||||
Time charter equivalent (TCE) rate
|
|
|
-
|
-
|
-
|
12,592
|
13,584
|
|
·
|
supply and demand for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
|
·
|
changes in the exploration or production of energy resources, commodities, semi-finished and finished consumer and industrial products;
|
|
·
|
the location of regional and global exploration, production and manufacturing facilities;
|
|
·
|
the location of consuming regions for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
|
·
|
the globalization of production and manufacturing;
|
|
·
|
global and regional economic and political conditions, including armed conflicts, terrorist activities, embargoes and strikes;
|
|
·
|
natural disasters and other disruptions in international trade;
|
|
·
|
developments in international trade;
|
|
·
|
changes in seaborne and other transportation patterns, including the distance cargo is transported by sea;
|
|
·
|
environmental and other regulatory developments;
|
|
·
|
currency exchange rates; and
|
|
·
|
weather.
|
|
·
|
the number of newbuilding deliveries;
|
|
·
|
port and canal congestion;
|
|
·
|
the scrapping rate of older vessels;
|
|
·
|
vessel casualties; and
|
|
·
|
the number of vessels that are out of service.
|
|
·
|
prevailing level of charter rates;
|
|
·
|
general economic and market conditions affecting the shipping industry;
|
|
·
|
types and sizes of vessels;
|
|
·
|
supply of and demand for vessels;
|
|
·
|
other modes of transportation;
|
|
·
|
cost of newbuildings;
|
|
·
|
governmental and other regulations; and
|
|
·
|
technological advances.
|
|
·
|
marine disaster;
|
|
·
|
environmental accidents;
|
|
·
|
cargo and property losses or damage;
|
|
·
|
business interruptions caused by mechanical failure, human error, war, terrorism, political action in various countries, labor strikes or adverse weather conditions; and
|
|
·
|
piracy.
|
|
·
|
worldwide production and demand for oil and gas and any geographical dislocations in supply and demand;
|
|
·
|
the cost of exploring for, developing, producing and delivering oil and gas;
|
|
·
|
expectations regarding future energy prices;
|
|
·
|
advances in exploration, development and production technology;
|
|
·
|
the ability of the Organization of Petroleum Exporting Countries, or OPEC, to set and maintain levels and pricing;
|
|
·
|
the level of production in non-OPEC countries;
|
|
·
|
government regulations;
|
|
·
|
local and international political, economic and weather conditions;
|
|
·
|
domestic and foreign tax policies;
|
|
·
|
development and exploitation of alternative fuels;
|
|
·
|
the policies of various governments regarding exploration and development of their oil and gas reserves; and
|
|
·
|
the worldwide military and political environment, including uncertainty or instability resulting from an escalation or additional outbreak of armed hostilities, insurrection or other crises in the Middle East or other geographic areas or further acts of terrorism in the United States, or elsewhere.
|
|
·
|
the availability of competing offshore drilling vessels and the level of newbuilding activity for drilling vessels;
|
|
·
|
the level of costs for associated offshore oilfield and construction services;
|
|
·
|
oil and gas transportation costs;
|
|
·
|
the discovery of new oil and gas reserves;
|
|
·
|
the cost of non-conventional hydrocarbons, such as the exploitation of oil sands; and
|
|
·
|
regulatory restrictions on offshore drilling.
|
|
·
|
terrorist and environmental activist acts, armed hostilities, war and civil disturbances;
|
|
·
|
acts of piracy, which have historically affected ocean-going vessels trading in regions of the world such as the South China Sea and in the Gulf of Aden off the coast of Somalia and which have generally increased significantly in frequency since 2008, particularly in the Gulf of Aden and off the west coast of Africa;
|
|
·
|
significant governmental influence over many aspects of local economies;
|
|
·
|
seizure, nationalization or expropriation of property or equipment;
|
|
·
|
repudiation, nullification, modification or renegotiation of contracts;
|
|
·
|
limitations on insurance coverage, such as war risk coverage, in certain areas;
|
|
·
|
political unrest;
|
|
·
|
foreign and U.S. monetary policy, government debt downgrades and potential defaults and foreign currency fluctuations and devaluations;
|
|
·
|
the inability to repatriate income or capital;
|
|
·
|
complications associated with repairing and replacing equipment in remote locations;
|
|
·
|
import-export quotas, wage and price controls, imposition of trade barriers;
|
|
·
|
regulatory or financial requirements to comply with foreign bureaucratic actions;
|
|
·
|
changing taxation policies, including confiscatory taxation;
|
|
·
|
other forms of government regulation and economic conditions that are beyond our control; and
|
|
·
|
governmental corruption.
|
|
·
|
the equipping and operation of drilling units;
|
|
·
|
repatriation of foreign earnings;
|
|
·
|
oil and gas exploration and development;
|
|
·
|
taxation of offshore earnings and earnings of expatriate personnel; and
|
|
·
|
use and compensation of local employees and suppliers by foreign contractors.
|
|
·
|
supply of and demand for oil and oil products;
|
|
·
|
global and regional economic and political conditions, including developments in international trade, national oil reserves policies, fluctuations in industrial and agricultural production and armed conflicts, which, among other things, could impact the supply of oil as well as trading patterns and the demand for various types of vessels;
|
|
·
|
regional availability of refining capacity;
|
|
·
|
environmental and other legal and regulatory developments;
|
|
·
|
the distance oil and oil products are to be moved by sea;
|
|
·
|
changes in seaborne and other transportation patterns, including changes in the distances over which tanker cargoes are transported by sea;
|
|
·
|
increases in the production of oil in areas linked by pipelines to consuming areas, the extension of existing, or the development of new, pipeline systems in markets we may serve, or the conversion of existing non-oil pipelines to oil pipelines in those markets;
|
|
·
|
currency exchange rates;
|
|
·
|
weather and acts of God and natural disasters;
|
|
·
|
competition from alternative sources of energy and from other shipping companies and other modes of transport;
|
|
·
|
international sanctions, embargoes, import and export restrictions, nationalizations, piracy and wars; and
|
|
·
|
regulatory changes including regulations adopted by supranational authorities and/or industry bodies, such as safety and environmental regulations and requirements by major oil companies.
|
|
·
|
current and expected purchase orders for tankers;
|
|
·
|
the number of tanker newbuilding deliveries;
|
|
·
|
any potential delays in the delivery of newbuilding vessels and/or cancellations of newbuilding orders;
|
|
·
|
the scrapping rate of older tankers;
|
|
·
|
the successful implementation of the phase-out of single-hull tankers;
|
|
·
|
technological advances in tanker design and capacity;
|
|
·
|
tanker freight rates, which are affected by factors that may effect the rate of newbuilding, swapping and laying up of tankers;
|
|
·
|
port and canal congestion;
|
|
·
|
price of steel and vessel equipment;
|
|
·
|
conversion of tankers to other uses or conversion of other vessels to tankers;
|
|
·
|
the number of tankers that are out of service; and
|
|
·
|
changes in environmental and other regulations that may limit the useful lives of tankers.
|
|
·
|
general economic and market conditions affecting the shipping industry;
|
|
·
|
competition from other shipping companies;
|
|
·
|
supply of and demand for tankers and the types and sizes of tankers we own;
|
|
·
|
alternative modes of transportation;
|
|
·
|
ages of vessels;
|
|
·
|
cost of newbuildings;
|
|
·
|
governmental or other regulations;
|
|
·
|
prevailing level of charter rates; and
|
|
·
|
technological advances.
|
|
·
|
enter into other financing arrangements;
|
|
·
|
incur or guarantee additional indebtedness;
|
|
·
|
create or permit liens on our assets;
|
|
·
|
consummate a merger, consolidation or sale of our all or substantially all of our assets or the shares of our subsidiaries;
|
|
·
|
make investments;
|
|
·
|
change the general nature of our business;
|
|
·
|
pay dividends, redeem capital stock or subordinated indebtedness or make other restricted payments;
|
|
·
|
incur dividend or other payment restrictions affecting the restricted subsidiaries under the indenture governing our Senior Secured Notes (as defined below);
|
|
·
|
change the management and/or ownership of our vessels and drilling units;
|
|
·
|
enter into transactions with affiliates;
|
|
·
|
transfer or sell assets;
|
|
·
|
amend, modify or change our organizational documents;
|
|
·
|
make capital expenditures;
|
|
·
|
change the flag, class or management of our vessels or drilling units;
|
|
·
|
drop below certain minimum cash deposits, as defined in our credit facilities; and
|
|
·
|
compete effectively to the extent our competitors are subject to less onerous restrictions.
|
|
·
|
we may not be able to satisfy our financial obligations under our indebtedness and our contractual and commercial commitments, which may result in possible defaults on and acceleration of such indebtedness;
|
|
·
|
we may not be able to obtain financing in the future for working capital, capital expenditures, acquisitions, debt service requirements or other purposes;
|
|
·
|
we may not be able to use operating cash flow in other areas of our business because we must dedicate a substantial portion of these funds to service the debt;
|
|
·
|
we could become more vulnerable to general adverse economic and industry conditions, including increases in interest rates, particularly given our substantial indebtedness, some of which bears interest at variable rates;
|
|
·
|
our ability to refinance indebtedness may be limited or the associated costs may increase;
|
|
·
|
less leveraged competitors could have a competitive advantage because they have lower debt service requirements and, as a result, we may not be better positioned to withstand economic downturns; and
|
|
·
|
we may be less able to take advantage of significant business opportunities and to react to changes in market or industry conditions than our competitors and our management's discretion in operating our business may be limited.
|
Amounts in thousand of US dollars
|
2012
|
|||||||||||
Level of impairment
|
5 year
|
3 year
|
1 year
|
|||||||||
Drybulk carriers
|
$ | 42,902 | $ | 753,809 | $ | 952,181 | ||||||
Drybulk carriers under construction
|
- | 46,700 | 135,327 | |||||||||
Tankers
|
- | 105,489 | 105,489 | |||||||||
Tankers under construction
|
- | 39,750 | 39,750 | |||||||||
Total
|
$ | 42,902 | $ | 945,748 | $ | 1,232,747 |
|
·
|
shipyard unavailability;
|
|
·
|
shortages of equipment, materials or skilled labor for completion of repairs or upgrades to our equipment;
|
|
·
|
unscheduled delays in the delivery of ordered materials and equipment or shipyard construction;
|
|
·
|
financial or operating difficulties experienced by equipment vendors or the shipyard;
|
|
·
|
unanticipated actual or purported change orders;
|
|
·
|
local customs strikes or related work slowdowns that could delay importation of equipment or materials;
|
|
·
|
engineering problems, including those relating to the commissioning of newly designed equipment;
|
|
·
|
design or engineering changes;
|
|
·
|
latent damages or deterioration to the hull, equipment and machinery in excess of engineering estimates and assumptions;
|
|
·
|
work stoppages;
|
|
·
|
client acceptance delays;
|
|
·
|
weather interference, storm damage or other events of force majeure;
|
|
·
|
disputes with shipyards and suppliers;
|
|
·
|
shipyard failures and difficulties;
|
|
·
|
failure or delay of third-party equipment vendors or service providers;
|
|
·
|
unanticipated cost increases; and
|
|
·
|
difficulty in obtaining necessary permits or approvals or in meeting permit or approval conditions.
|
|
·
|
locate and acquire suitable vessels and drilling units;
|
|
·
|
identify and consummate acquisitions or joint ventures;
|
|
·
|
enhance our customer base;
|
|
·
|
manage our expansion; and
|
|
·
|
obtain required financing on acceptable terms.
|
|
·
|
actual or anticipated fluctuations in our quarterly and annual results and those of other public companies in our industry;
|
|
·
|
mergers and strategic alliances in the drybulk shipping industry;
|
|
·
|
market conditions in the drybulk shipping industry and the general state of the securities markets;
|
|
·
|
changes in government regulation;
|
|
·
|
shortfalls in our operating results from levels forecast by securities analysts; and
|
|
·
|
announcements concerning us or our competitors.
|
|
·
|
authorizing our board of directors to issue "blank check" preferred stock without stockholder approval;
|
|
·
|
providing for a classified board of directors with staggered, three-year terms;
|
|
·
|
prohibiting cumulative voting in the election of directors;
|
|
·
|
authorizing the removal of directors only for cause and only upon the affirmative vote of the holders of a majority of the outstanding shares of our common shares entitled to vote for the directors;
|
|
·
|
prohibiting stockholder action by written consent unless the written consent is signed by all shareholders entitled to vote on the action;
|
|
·
|
limiting the persons who may call special meetings of stockholders;
|
|
·
|
establishing advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted on by stockholders at stockholder meetings; and
|
|
·
|
restricting business combinations with interested shareholders.
|
|
|
|
|
|
|
|
|
|
|
|
Redelivery
|
||
|
Year
Built
|
|
|
DWT
|
|
Type
|
Current
employment
or
employment
upon
delivery
|
|
Gross
rate
per day
|
|
Earliest
|
Latest
|
|
Capesize:
|
|
|
|
||||||||||
Fakarava
|
2012
|
206,000
|
Capesize
|
T/C
|
$ |
25,000
|
Sept-15
|
Sept-20
|
|||||
Mystic
|
2008
|
|
170,040
|
|
Capesize
|
T/C
|
|
$ |
52,310
|
|
Aug-18
|
Dec-18
|
|
Robusto
|
2006
|
|
173,949
|
|
Capesize
|
T/C
|
|
$ |
26,000
|
|
Aug-14
|
Apr-18
|
|
Cohiba
|
2006
|
|
174,234
|
|
Capesize
|
T/C
|
|
$ |
26,250
|
|
Oct-14
|
Jun-19
|
|
Montecristo
|
2005
|
|
180,263
|
|
Capesize
|
T/C
|
|
$ |
23,500
|
|
May-14
|
Feb-19
|
|
Flecha
|
2004
|
|
170,012
|
|
Capesize
|
T/C
|
|
$ |
55,000
|
|
Jul-18
|
Nov-18
|
|
Manasota
|
2004
|
|
171,061
|
|
Capesize
|
T/C
|
|
$ |
30,000
|
|
Jan-18
|
Aug-18
|
|
Partagas
|
2004
|
|
173,880
|
|
Capesize
|
T/C
|
|
$ |
10,000
|
|
Jun-13
|
Aug-13
|
|
Alameda
|
2001
|
|
170,662
|
|
Capesize
|
T/C
|
|
$ |
27,500
|
|
Nov-15
|
Jan-16
|
|
Capri
|
2001
|
|
172,579
|
|
Capesize
|
T/C
|
|
$ |
10,000
|
|
Nov-13
|
Mar-14
|
|
Average age based on year built/ Sum of DWT/ Total number of vessels
|
6.9 years
|
|
1,762,680
|
|
10
|
|
|||||||
Panamax:
|
|
|
|
||||||||||
Raraka
|
2012
|
|
76,037
|
|
Panamax
|
T/C
|
|
7,500
|
|
Jan-15
|
Mar-15
|
||
Woolloomooloo
|
2012
|
|
76,064
|
|
Panamax
|
T/C
|
|
7,500
|
|
Dec-14
|
Feb-15
|
||
Amalfi
|
2009
|
|
75,206
|
|
Panamax
|
T/C
|
|
$ |
39,750
|
|
Jul- 13
|
Sep- 13
|
|
Rapallo
|
2009
|
|
75,123
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Catalina
|
2005
|
|
74,432
|
|
Panamax
|
T/C
|
|
$ |
40,000
|
|
Jun-13
|
Aug-13
|
|
Majorca
|
2005
|
|
74,477
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Ligari
|
2004
|
|
75,583
|
|
Panamax
|
T/C
|
|
$ |
9,250
|
|
Sept-13
|
Nov-13
|
|
Saldanha
|
2004
|
|
75,707
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Sorrento
|
2004
|
|
76,633
|
|
Panamax
|
T/C
|
|
$ |
24,500
|
|
Aug-21
|
Dec-21
|
|
Mendocino
|
2002
|
|
76,623
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Bargara
|
2002
|
|
74,832
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Oregon
|
2002
|
|
74,204
|
|
Panamax
|
T/C
|
|
$ |
9,650
|
|
Sept-13
|
Nov-13
|
|
Ecola
|
2001
|
|
73,931
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Samatan
|
2001
|
|
74,823
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Sonoma
|
2001
|
|
74,786
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Capitola
|
2001
|
|
74,816
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Levanto
|
2001
|
|
73,925
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Maganari
|
2001
|
|
75,941
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Coronado
|
2000
|
|
75,706
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Marbella
|
2000
|
|
72,561
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Redondo
|
2000
|
|
74,716
|
|
Panamax
|
T/C
|
|
$ |
9,250
|
|
Sept-13
|
Nov-13
|
|
Topeka
|
2000
|
|
74,716
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Ocean Crystal
|
1999
|
|
73,688
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Helena
|
1999
|
|
73,744
|
|
Panamax
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Average age based on year built / Sum of DWT/ Total number of vessels
|
8.9 years
|
|
1,798,274
|
|
24
|
|
|||||||
Supramax:
|
|
|
|
||||||||||
Byron
|
2003
|
|
51,118
|
|
Supramax
|
Spot
|
|
|
N/A
|
|
N/A
|
N/A
|
|
Galveston
|
2002
|
|
51,201
|
|
Supramax
|
Spot
|
|
|
N/A
|
|
N/A
|
N/A
|
|
Average age based on year built / Sum of DWT/ Total number of vessels
|
9.5 years
|
|
102,319
|
|
2
|
|
|||||||
Totals (36)
|
|
|
|
||||||||||
Average age based on year built / Sum of DWT/ Total number of vessels
|
8.4 years
|
|
3,663,273
|
|
36
|
|
|
|
|
|
|
|
|
|
|
|
|
Redelivery
|
||
|
Year
Built
|
|
|
DWT
|
|
Type
|
Current
employment
or
employment
upon
delivery
|
|
Gross
rate
per day
|
|
Earliest
|
Latest
|
|
Under Construction
|
|
|
|
||||||||||
Panamax:
|
|||||||||||||
Newbuilding Ice – class Panamax 1
|
2014
|
|
75,900
|
|
Panamax
|
Spot
|
|
|
Spot
|
|
N/A
|
N/A
|
|
Newbuilding Ice – class Panamax 2
|
2014
|
|
75,900
|
|
Panamax
|
Spot
|
|
|
Spot
|
|
N/A
|
N/A
|
|
Newbuilding Ice – class Panamax 3
|
2014
|
|
75,900
|
|
Panamax
|
Spot
|
|
|
Spot
|
|
N/A
|
N/A
|
|
Newbuilding Ice – class Panamax 4
|
2014
|
|
75,900
|
|
Panamax
|
Spot
|
|
|
Spot
|
|
N/A
|
N/A
|
|
Capesize:
|
|||||||||||||
Newbuilding VLOC #5
|
2014
|
|
206,000
|
|
Capesize
|
Spot
|
|
|
Spot
|
|
N/A
|
N/A
|
|
Newbuilding VLOC #4
|
2013
|
|
206,000
|
|
Capesize
|
Spot
|
|
|
Spot
|
|
N/A
|
N/A
|
|
Newbuilding Capesize 1
|
2012
|
|
176,000
|
|
Capesize
|
Spot
|
|
|
Spot
|
|
N/A
|
N/A
|
|
Newbuilding Capesize 2
|
2012
|
|
176,000
|
|
Capesize
|
Spot
|
|
Spot
|
|
N/A
|
N/A
|
||
Newbuilding VLOC #2
|
2012
|
|
206,000
|
|
Capesize
|
T/C
|
|
$ |
23,000
|
|
Apr-18
|
Nov-23
|
|
Newbuilding VLOC #3
|
2012
|
|
206,000
|
|
Capesize
|
T/C
|
|
$ |
21,500
|
|
Apr-20
|
Mar-28
|
Drilling Unit
|
Year Built or
Scheduled
Delivery/
Generation
|
Water
Depth to Welhead (ft)
|
Drilling
Depth to Oil Field (ft)
|
Customer
|
Expected Contract
Term(1)
|
Maximum
Dayrate
|
Drilling
Location
|
|||||||
Operating Drilling Rigs
|
||||||||||||||
Leiv Eiriksson
|
2001/5th
|
7,500
|
30,000
|
Rig Management Norway AS(2)
|
Q1 2013–
Q1 2016
|
$545,000
|
Norwegian
Continental
Shelf
|
|||||||
Eirik Raude
|
2002/5th
|
10,000
|
30,000
|
ExxonMobil Exploration and Production Ireland (Offshore) Limited
|
Q1 2013 – Q3 2013(3)
|
$595,000
|
Ireland
|
|||||||
Lukoil Overseas Sierra-Leone B.V.
|
Q3 2013 – Q4 2014
|
$575,000
|
West Africa
|
|||||||||||
Operating Drillships
|
||||||||||||||
Ocean Rig Corcovado
|
2011/6th
|
10,000
|
40,000
|
Petróleo Brasileiro S.A.
|
Q2 2012–
Q2 2015
|
$446,000(4)
|
Brazil
|
|||||||
Ocean Rig Olympia
|
2011/6th
|
10,000
|
40,000
|
Total E&P Angola
|
Q3 2012–
Q3 2015(5)
|
$584,450
|
West Africa
|
|||||||
Ocean Rig Poseidon
|
2011/6th
|
10,000
|
40,000
|
Petrobras Tanzania Limited
|
Q3 2011–
Q1 2013
|
$632,000(6)
|
Tanzania and
West Africa
|
|||||||
ENI Angola S.p.A.
|
Q2 2013–
Q2 2016
|
$690,300(7)
|
Angola
|
|||||||||||
Ocean Rig Mykonos
|
2011/6th
|
10,000
|
40,000
|
Petróleo Brasileiro S.A.
|
Q1 2012–
Q1 2015
|
$441,000(4)
|
Brazil
|
|||||||
Ocean Rig Mylos
|
Q3 2013/7th
|
12,000
|
40,000
|
Repsol Sinopec Brasil S.A.
|
Q3 2013–
Q3 2016
|
$624,842(8)
|
Brazil
|
|||||||
Ocean Rig Skyros
|
Q4 2013/7th
|
12,000
|
40,000
|
|||||||||||
Ocean Rig Athena
|
Q4 2013/7th
|
12,000
|
40,000
|
ConocoPhillips Angola 36 & 37 Ltd
|
Q4 2013–
Q1 2017
|
$648,096(9)
|
Angola
|
|||||||
Ocean Rig Apollo
|
Q1 2015/7th
|
12,000
|
40,000
|
Major Oil Company(10)
|
West Africa
|
|||||||||
Optional Newbuilding
Drillships (11)
|
||||||||||||||
NB Option #1
|
7th
|
12,000
|
40,000
|
|||||||||||
NB Option #2
|
7th
|
12,000
|
40,000
|
________________
|
|
|
|
|
|
|
Redelivery
|
|
|||||||
|
Year
Built
|
DWT
|
Type
|
Current
employment or
employment
upon delivery
|
Gross
rate
per day
|
Earliest
|
|
Latest
|
|
|||||
Suezmax:
|
||||||||||||||
Bordeira
|
2013
|
158,300
|
Suezmax
|
Spot
|
Spot
|
N/A
|
N/A
|
|||||||
Lipari
|
2012
|
158,300
|
Suezmax
|
Spot
|
Spot
|
N/A
|
N/A
|
|||||||
Petalidi
|
2012
|
158,300
|
Suezmax
|
Spot
|
Spot
|
N/A
|
N/A
|
|||||||
Vilamoura
|
2011
|
158,300
|
Suezmax
|
Spot
|
Spot
|
|
|
N/A
|
|
|
|
N/A
|
|
|
Aframax
|
||||||||||||||
Alicante
|
2013
|
115,200
|
Aframax
|
Spot
|
Spot
|
N/A
|
N/A
|
|||||||
Mareta
|
2013
|
115,200
|
Aframax
|
Spot
|
Spot
|
N/A
|
N/A
|
|||||||
Calida
|
2012
|
115,200
|
Aframax
|
Sigma Pool
|
Sigma Pool
|
|
|
N/A
|
|
|
|
N/A
|
|
|
Saga
|
2011
|
115,200
|
Aframax
|
Spot
|
Spot
|
|
|
N/A
|
|
|
|
N/A
|
|
|
Daytona
|
2011
|
115,200
|
Aframax
|
Spot
|
Spot
|
|
|
N/A
|
|
|
|
N/A
|
|
|
Belmar
|
2011
|
115,200
|
Aframax
|
Spot
|
Spot
|
|
|
N/A
|
|
|
|
N/A
|
|
|
·
|
Very Large Ore Carriers, or VLOCs, have a carrying capacity of more than 200,000 dwt and are a comparatively new sector of the drybulk carrier fleet. VLOCs are built to exploit economies of scale on long-haul iron ore routes.
|
|
·
|
Capesize vessels, which have carrying capacities of 110,000 – 199,999 dwt. These vessels generally operate along long-haul iron ore and coal trade routes. There are relatively few ports around the world with the infrastructure to accommodate vessels of this size.
|
|
·
|
Panamax vessels, which have a carrying capacity of between 60,000 and 85,000 dwt. These vessels carry coal, grains, and, to a lesser extent, minor bulks, including steel products, forest products and fertilizers. Panamax vessels are able to pass through the Panama Canal making them more versatile than larger vessels.
|
|
·
|
Handymax vessels, which have a carrying capacity of between 35,000 and 60,000 dwt. The subcategory of vessels that have a carrying capacity of between 45,000 and 60,000 dwt called Supramax. These vessels operate along a large number of geographically dispersed global trade routes mainly carrying grains and minor bulks. Vessels below 60,000 dwt are sometimes built with on-board cranes enabling them to load and discharge cargo in countries and ports with limited infrastructure.
|
|
·
|
Handysize vessels, which have a carrying capacity of up to 35,000 dwt. These vessels carry exclusively minor bulk cargo. Increasingly, these vessels have operated along regional trading routes. Handysize vessels are well suited for small ports with length and draft restrictions that may lack the infrastructure for cargo loading and unloading.
|
Customer
|
Year ended
December 31, 2010
|
Year ended
December 31, 2011
|
Year ended
December 31, 2012
|
|||||||||
Customer A
|
57 | % | 36 | % | - | |||||||
Customer B
|
43 | % | 18 | % | 49 | % | ||||||
Customer C
|
- | - | 18 | % | ||||||||
Customer D
|
- | 33 | % | 12 | % | |||||||
Customer E
|
- | 13 | % | - |
|
·
|
maintaining their pool vessels in seaworthy condition and to the agreed technical and operational standards of the pool;
|
|
·
|
maintaining all required ISM certificates and keeping the pool vessel classed with a classification society that is a member of the International Association of Classification Societies, or the IACS;
|
|
·
|
obtaining and maintaining a minimum number of agreed oil major approvals in accordance with the pool agreement;
|
|
·
|
providing for inspections to insure that ship inspection reports are obtained at least every six months;
|
|
·
|
obtaining, for its own account, in accordance with standards consistent with prudent first class owners of vessels, all relevant insurance policies for its pool vessels, including hull and machinery, protection and indemnity and war risk insurance policies; and
|
|
·
|
providing for the technical management of its pool vessels, including all matters related to vessel seaworthiness, crewing and crew administration, victualling, maintenance and repairs, drydocking, provisioning (lube oils, stores and spare parts), compliance with class requirements and compliance with the requirements of relevant authorities.
|
|
·
|
marketing the vessels;
|
|
·
|
trading pattern analysis;
|
|
·
|
handling of charters and employment contracts;
|
|
·
|
commercial operations and payment and collection of expenses and revenues relating to commercial operations;
|
|
·
|
handling of any post-fixture claims; and
|
|
·
|
budgeting, accounting and performance of the pool.
|
|
·
|
on-board installation of automatic identification systems to provide a means for the automatic transmission of safety-related information from among similarly equipped ships and shore stations, including information on a ship's identity, position, course, speed and navigational status;
|
|
·
|
on-board installation of ship security alert systems, which do not sound on the vessel but only alert the authorities on shore;
|
|
·
|
the development of vessel security plans;
|
|
·
|
ship identification number to be permanently marked on a vessel's hull;
|
|
·
|
a continuous synopsis record kept onboard showing a vessel's history including the name of the ship, the state whose flag the ship is entitled to fly, the date on which the ship was registered with that state, the ship's identification number, the port at which the ship is registered and the name of the registered owner(s) and their registered address; and
|
|
·
|
compliance with flag state security certification requirements.
|
|
·
|
Calendar days. We define calendar days as the total number of days in a period during which each vessel in our fleet was in our possession including off-hire days associated with major repairs, drydockings or special or intermediate surveys. Calendar days are an indicator of the size of our fleet over a period and affect both the amount of revenues and the amount of expenses that we record during that period.
|
|
·
|
Voyage days. We define voyage days as the total number of days in a period during which each vessel in our fleet was in our possession net of off-hire days associated with drydockings or special or intermediate surveys. The shipping industry uses voyage days (also referred to as available days) to measure the number of days in a period during which vessels actually generate revenues.
|
|
·
|
Fleet utilization. We calculate fleet utilization by dividing the number of our voyage days during a period by the number of our calendar days during that period. The shipping industry uses fleet utilization to measure a company's efficiency in finding suitable employment for its vessels and minimizing the amount of days that its vessels are off-hire for reasons such as scheduled repairs, vessel upgrades, drydockings or special or intermediate surveys.
|
|
·
|
Spot charter rates. Spot charter rates are volatile and fluctuate on a seasonal and year to year basis. Fluctuations are caused by imbalances in the availability of cargoes for shipment and the number of vessels available at any given time to transport these cargoes.
|
|
·
|
TCE rates. We define TCE rates as our voyage and time charter revenues less voyage expenses during a period divided by the number of our available days during the period, which is consistent with industry standards. TCE rate, a non-U.S. GAAP measure, provides additional meaningful information in conjunction with revenues from our drybulk carriers, the most directly comparable U.S. GAAP measure, because it assists Company management in making decisions regarding the deployment and use of its vessels and in evaluating their financial performance. TCE rate is also a standard shipping industry performance measure used primarily to compare daily earnings generated by vessels on time charters with daily earnings generated by vessels on voyage charters, because charterhire rates for vessels on voyage charters are generally not expressed in per day amounts while charterhire rates for vessels on time charters generally are expressed in such amounts.
|
|
|
Year Ended December 31,
|
|
|||||||||||||||||
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||||
Average number of vessels
|
|
|
38.56
|
|
|
|
38.12
|
|
|
|
37.21
|
|
|
|
35.80
|
|
|
|
35.67
|
|
Total voyage days for fleet
|
|
|
13,938
|
|
|
|
13,700
|
|
|
|
13,430
|
|
|
|
12,831
|
|
|
|
13,027
|
|
Total calendar days for fleet
|
|
|
14,114
|
|
|
|
13,914
|
|
|
|
13,583
|
|
|
|
13,068
|
|
|
|
13,056
|
|
Fleet Utilization
|
|
|
98.75
|
%
|
|
|
98.46
|
%
|
|
|
98.87
|
%
|
|
|
98.19
|
%
|
|
|
99.78
|
%
|
Time charter equivalent
|
|
|
57,980
|
|
|
|
30,336
|
|
|
|
32,045
|
|
|
|
26,912
|
|
|
|
15,896
|
|
|
·
|
Employment Days: We define employment days as the total number of days the drilling units are employed on a drilling contract.
|
|
·
|
Dayrates or maximum dayrates: Unless otherwise stated, we define drilling dayrates as the maximum rate in U.S. Dollars possible to earn for drilling services for one 24 hour day at 100% efficiency under the drilling contract. Such dayrate may be measured by quarter-hour, half-hour or hourly basis and may be reduced depending on the activity performed according to the drilling contract.
|
|
·
|
Earnings efficiency / Earnings efficiency on hire: Earnings efficiency measures the effective earnings ratio, expressed as a percentage of the full earnings rate, after reducing for certain operations paid at a reduced rate, non-productive time at zero rate, or off hire without dayrates. Earnings efficiency on hire measures the earning efficiency only for the period during which the drilling unit is on contract and does not include off-hire periods.
|
|
·
|
Mobilization / demobilization fees: In connection with drilling contracts, we may receive revenues for preparation and mobilization of equipment and personnel or for capital improvements to the drilling vessels, dayrate or fixed price mobilization and demobilization fees.
|
|
·
|
Revenue: For each contract, we determine whether the contract, for accounting purposes, is a multiple element arrangement, meaning it contains both a lease element and a drilling services element, and, if so, identify all deliverables (elements). For each element we determine how and when to recognize revenue.
|
|
·
|
Vessel Revenues: Vessel revenues primarily include revenues from spot and pool revenues. Vessel revenues are affected by spot rates and the number of days a vessel operates. Vessel revenues are also affected by the mix of business between vessels on spot and vessels in pools. Revenues from vessels in pools are more volatile, as they are typically tied to prevailing market rates.
|
|
·
|
Voyage related and vessel operating costs: Voyage expenses, primarily consisting of commissions, port, canal and bunker expenses that are unique to a particular charter, are paid for by the Company under voyage charter arrangements, except for commissions, which are either paid for by the Company or are deducted from the freight revenue. All voyage and vessel operating expenses are expensed as incurred, except for commissions. Commissions are deferred and amortized over the related voyage charter period to the extent revenue has been deferred since commissions are earned as the Company's revenues are earned.
|
|
·
|
Depreciation: Depreciation expense typically consists of charges related to the depreciation of the historical cost of our fleet (less an estimated residual value) over the estimated useful lives of the vessels.
|
|
·
|
Drydocking: We must periodically drydock each of our vessels for inspection, repairs and maintenance and any modifications to comply with industry certification or governmental requirements. Generally, each vessel is required to be drydocked every 30 months. We directly expense costs incurred during drydocking and costs for routine repairs and maintenance performed during drydocking that do not improve or extend the useful lives of the assets. The number of drydockings undertaken in a given period and the nature of the work performed determine the level of drydocking expenditures.
|
|
·
|
Time Charter Equivalent Rates: Time charter equivalent, or TCE, rates, are a standard industry measure of the average daily revenue performance of a vessel. The TCE rate achieved on a given voyage is expressed in U.S. dollars/day and is generally calculated by subtracting voyage expenses, including bunkers and port charges, from voyage revenue and dividing the net amount (time charter equivalent revenues) by the number of days in the period.
|
|
·
|
Revenue Days: Revenue days are the total number of calendar days our vessels were in our possession during a period, less the total number of off-hire days during the period associated with major repairs or drydockings. Consequently, revenue days represent the total number of days available for the vessel to earn revenue. Idle days, which are days when a vessel is available to earn revenue, yet is not employed, are included in revenue days. We use revenue days to show changes in net voyage revenues between periods.
|
|
·
|
Average Number of Vessels: Historical average number of vessels consists of the average number of vessels that were in our possession during a period. We use average number of vessels primarily to highlight changes in vessel operating costs and depreciation and amortization.
|
|
·
|
Commercial Pools: To increase vessel utilization to gain economies of scale and thereby revenues, we participate in commercial pools with other shipowners of similar modern, well-maintained vessels. By operating a large number of vessels as an integrated transportation system, commercial pools offer customers greater flexibility and a higher level of service while achieving scheduling efficiencies. Pools employ experienced commercial charterers and operators who have close working relationships with customers and brokers, while technical management is performed by each shipowner. Pools negotiate charters with customers primarily in the spot market. The size and scope of these pools enable them to enhance utilization rates for pool vessels by securing backhaul voyages and COAs, thus generating higher effective TCE revenues than otherwise might be obtainable in the spot market while providing a higher level of service offerings to customers.
|
|
·
|
obtain the charterer's consent to us as the new owner;
|
|
·
|
obtain the charterer's consent to a new technical manager;
|
|
·
|
in some cases, obtain the charterer's consent to a new flag for the vessel;
|
|
·
|
arrange for a new crew for the vessel, and where the vessel is on charter, in some cases, the crew must be approved by the charterer;
|
|
·
|
replace all hired equipment on board, such as gas cylinders and communication equipment;
|
|
·
|
negotiate and enter into new insurance contracts for the vessel through our own insurance brokers;
|
|
·
|
register the vessel under a flag state and perform the related inspections in order to obtain new trading certificates from the flag state;
|
|
·
|
implement a new planned maintenance program for the vessel; and
|
|
·
|
ensure that the new technical manager obtains new certificates for compliance with the safety and vessel security regulations of the flag state.
|
|
·
|
employment and operation of our drybulk and tanker vessels and drilling units; and
|
|
·
|
management of the financial, general and administrative elements involved in the conduct of our business and ownership of our drybulk and tanker vessels and drilling units.
|
|
·
|
vessel maintenance and repair;
|
|
·
|
crew selection and training;
|
|
·
|
vessel spares and stores supply;
|
|
·
|
contingency response planning;
|
|
·
|
onboard safety procedures auditing;
|
|
·
|
accounting;
|
|
·
|
vessel insurance arrangement;
|
|
·
|
vessel chartering;
|
|
·
|
vessel security training and security response plans (ISPS);
|
|
·
|
obtain ISM certification and audit for each vessel within the six months of taking over a vessel;
|
|
·
|
vessel hire management;
|
|
·
|
vessel surveying; and
|
|
·
|
vessel performance monitoring.
|
|
·
|
management of our financial resources, including banking relationships, i.e., administration of bank loans and bank accounts;
|
|
·
|
management of our accounting system and records and financial reporting;
|
|
·
|
administration of the legal and regulatory requirements affecting our business and assets; and
|
|
·
|
management of the relationships with our service providers and customers.
|
|
·
|
Charter rates and periods of charterhire for our drybulk and tanker vessels;
|
|
·
|
dayrates and duration of drilling contracts;
|
|
·
|
utilization of drilling units (earnings efficiency);
|
|
·
|
levels of drybulk and tanker vessel and drilling unit operating expenses;
|
|
·
|
depreciation and amortization expenses;
|
|
·
|
financing costs; and
|
|
·
|
fluctuations in foreign exchange rates.
|
|
·
|
reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values;
|
|
·
|
news and industry reports of similar vessel sales;
|
|
·
|
news and industry reports of sales of vessels that are not similar to our vessels where we have made certain adjustments in an attempt to derive information that can be used as part of our estimates;
|
|
·
|
approximate market values for our vessels or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers have generally disseminated;
|
|
·
|
offers that we may have received from potential purchasers of our vessels; and
|
|
·
|
vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and various other shipping industry participants and observers.
|
Drybulk Vessels
|
Dwt
|
Year Built
|
Carrying Value December 31, 2012 (in millions) ****
|
Carrying Value December 31, 2011 (in millions) ****
|
||||||||||||
Montecristo
|
180,263 | 2005 | 35.6 | ** | 37.4 | ** | ||||||||||
Cohiba
|
174,200 | 2006 | 35.9 | ** | 37.4 | |||||||||||
Robusto
|
173,949 | 2006 | 35.9 | ** | 37.4 | |||||||||||
Partagas
|
173,880 | 2004 | 31.9 | ** | 33.4 | |||||||||||
Capri
|
172,579 | 2001 | 116.0 | ** | 124.1 | ** | ||||||||||
Manasota
|
171,061 | 2004 | 59.3 | ** | 62.6 | ** | ||||||||||
Alameda
|
170,662 | 2001 | 50.5 | ** | 53.7 | ** | ||||||||||
Mystic
|
170,040 | 2008 | 123.5 | ** | 129.2 | ** | ||||||||||
Flecha
|
170,012 | 2004 | 126.9 | ** | 134.2 | ** | ||||||||||
Sorrento
|
76,633 | 2004 | 69.8 | ** | 73.8 | ** | ||||||||||
Avoca***
|
76,629 | 2004 | - | 45.0 | ** | |||||||||||
Mendocino
|
76,623 | 2002 | 31.6 | ** | 33.6 | ** | ||||||||||
Maganari
|
75,941 | 2001 | 22.5 | ** | 24.0 | ** | ||||||||||
Saldanha
|
75,707 | 2004 | 58.0 | ** | 61.5 | ** | ||||||||||
Coronado
|
75,706 | 2000 | 28.4 | ** | 30.5 | ** | ||||||||||
Ligari
|
75,583 | 2004 | 33.6 | ** | 35.5 | ** | ||||||||||
Rapallo
|
75,123 | 2009 | 30.5 | ** | 31.8 | ** | ||||||||||
Amalfi
|
75,000 | 2009 | 39.5 | ** | 41.2 | ** | ||||||||||
Bargara
|
74,832 | 2002 | 35.9 | ** | 38.3 | ** | ||||||||||
Samatan
|
74,823 | 2001 | 51.9 | ** | 55.7 | ** | ||||||||||
Capitola
|
74,816 | 2001 | 35.9 | ** | 38.3 | ** | ||||||||||
Sonoma
|
74,786 | 2001 | 28.9 | ** | 30.9 | ** | ||||||||||
Majorca
|
74,747 | 2005 | 41.3 | ** | 43.5 | ** | ||||||||||
Redondo
|
74,716 | 2000 | 28.5 | ** | 30.5 | ** | ||||||||||
Topeka
|
74,710 | 2000 | 18.3 | ** | 19.6 | ** | ||||||||||
Catalina
|
74,432 | 2005 | 37.1 | ** | 39.1 | ** | ||||||||||
Oregon
|
74,204 | 2002 | 50.5 | ** | 54.0 | ** | ||||||||||
Levanto
|
73,931 | 2001 | 37.9 | ** | 40.5 | ** | ||||||||||
Ecola
|
73,925 | 2001 | 29.1 | ** | 31.1 | ** | ||||||||||
Helena
|
73,744 | 1999 | 17.2 | ** | 18.5 | ** | ||||||||||
Ocean Crystal
|
73,688 | 1999 | 21.3 | ** | 23.0 | ** | ||||||||||
Padre***
|
73,601 | 2004 | - | 36.7 | ** | |||||||||||
Positano***
|
73,288 | 2000 | - | 37.6 | ** | |||||||||||
Marbella
|
72,561 | 2000 | 32.7 | ** | 35.1 | ** | ||||||||||
Galveston
|
51,201 | 2002 | 56.2 | ** | 59.9 | ** | ||||||||||
Byron
|
51,201 | 2003 | 46.8 | ** | 49.7 | ** | ||||||||||
Wooloomooloo
|
76,064 | 2012 | 34.0 | ** | 33.1 | ** | ||||||||||
Raraka
|
76,037 | 2012 | 34.0 | ** | 33.1 | ** | ||||||||||
Fakarava
|
206,000 | 2012 | 51.7 | ** | 68.1 | ** | ||||||||||
Total for drybulk vessels
|
3,886,898 | $ | 1,618.6 | $ | 1,842.6 |
Drybulk Vessels
|
Dwt
|
Year Built
|
Carrying Value December 31, 2012
(in millions) ****
|
Carrying Value December 31, 2011
(in millions) ****
|
||||||||||||
Drybulk vessels under construction
|
||||||||||||||||
VLOC #2
|
206,000 | 2012 | 68.1 | ** | 68.1 | ** | ||||||||||
VLOC #3
|
206,000 | 2012 | 68.1 | ** | 68.1 | ** | ||||||||||
VLOC #4
|
206,000 | 2013 | 59.4 | ** | 59.4 | ** | ||||||||||
VLOC #5
|
206,000 | 2013 | 59.4 | ** | 59.4 | ** | ||||||||||
Capesize 1
|
176,000 | 2012 | 54.2 | ** | 54.2 | ** | ||||||||||
Capesize 2
|
176,000 | 2012 | 54.2 | ** | 54.2 | ** | ||||||||||
Ice – class Panamax 1
|
75,900 | 2014 | 34.0 | ** | 34.0 | |||||||||||
Ice – class Panamax 2
|
75,900 | 2014 | 34.0 | ** | 34.0 | |||||||||||
Ice – class Panamax 3
|
75,900 | 2014 | 34.0 | ** | 34.0 | |||||||||||
Ice – class Panamax 4
|
75,900 | 2014 | 34.0 | ** | 34.0 | |||||||||||
Total for drybulk vessels under construction
|
1,479,600 | $ | 499.4 | $ | 499.4 | |||||||||||
Tanker vessels
|
||||||||||||||||
Vilamoura
|
158,300 | 2011 | 66.85 | * | 69.5 | * | ||||||||||
Saga
|
115,200 | 2011 | 55.98 | * | 58.2 | * | ||||||||||
Daytona
|
115,200 | 2011 | 57.07 | * | 59.3 | * | ||||||||||
Belmar
|
115,200 | 2011 | 58.67 | * | 61.0 | * | ||||||||||
Calida
|
115,200 | 2012 | 59.83 | * | 58.8 | * | ||||||||||
Lipari
|
158,300 | 2012 | 71.10 | * | 69.8 | * | ||||||||||
Petalidi
|
158,300 | 2012 | 71.51 | * | 69.8 | * | ||||||||||
Total for tanker vessels
|
935,700 | $ | 441.0 | $ | 446.4 | |||||||||||
Tanker vessels under construction
|
||||||||||||||||
Bordeira
|
158,300 | 2013 | 69.8 | * | 69.8 | * | ||||||||||
Alicante
|
115,200 | 2013 | 58.8 | * | 58.8 | * | ||||||||||
Mareta
|
115,200 | 2013 | 58.8 | * | 58.8 | * | ||||||||||
Esperona***
|
158,300 | 2013 | - | 69.8 | * | |||||||||||
Blanca***
|
158,300 | 2013 | - | 69.8 | * | |||||||||||
Total for tanker vessels under construction
|
388,700 | $ | 187.4 | $ | 327 | |||||||||||
Total
|
6,467,273 | 2,746.4 | $ | 3,115.4 |
Amounts on thousand of US dollars
|
2012
|
|||||||||||
Level of impairment
|
5 year
|
3 year
|
1 year
|
|||||||||
Drybulk carriers
|
$ | 42,902 | $ | 753,809 | $ | 952,181 | ||||||
Drybulk carriers under construction
|
- | 46,700 | 135,327 | |||||||||
Tankers
|
- | 105,489 | 105,489 | |||||||||
Tankers under construction
|
- | 39,750 | 39,750 | |||||||||
Total
|
$ | 42,902 | $ | 945,748 | $ | 1,232,747 |
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||
Average number of vessels
|
|
|
37.21
|
|
|
|
35.80
|
|
|
|
35.67
|
|
Total voyage days for fleet
|
|
|
13,430
|
|
|
|
12,831
|
|
|
|
13,027
|
|
Total calendar days for fleet
|
|
|
13,583
|
|
|
|
13,068
|
|
|
|
13,056
|
|
Fleet Utilization
|
|
|
98.87
|
%
|
|
|
98.19
|
%
|
|
|
99.78
|
%
|
Time charter equivalent
|
|
|
32,045
|
|
|
|
26,912
|
|
|
|
15,896
|
|
|
|
2011
|
|
|
2012
|
|
||
Average number of vessels
|
|
|
2.64
|
|
|
|
6.27
|
|
Total voyage days for vessels
|
|
|
963
|
|
|
|
2,293
|
|
Total calendar days for vessels
|
|
|
963
|
|
|
|
2,293
|
|
Fleet Utilization
|
|
|
100
|
%
|
|
|
100
|
%
|
Time charter equivalent
|
|
|
12,592
|
|
|
|
13,584
|
|
|
|
Year ended December 31,
|
|
|
|
|
||||||||||
|
|
2011
|
|
|
2012
|
|
Change
|
|
||||||||
REVENUES:
|
|
|
|
|||||||||||||
Revenues
|
|
$
|
1,077,662
|
|
|
$
|
1,210,139
|
|
$
|
132,477
|
|
|
12.3
|
%
|
||
EXPENSES:
|
|
|
|
|||||||||||||
Voyage expenses
|
|
|
20,573
|
|
|
|
30,012
|
|
|
9,439
|
45.9
|
%
|
||||
Vessels, drilling rigs and drillships operating expenses
|
|
|
373,122
|
|
|
|
649,722
|
|
|
276,600
|
|
|
74.1
|
%
|
||
Depreciation and amortization
|
|
|
274,281
|
|
|
|
335,458
|
|
|
61,177
|
|
|
22.3
|
%
|
||
Loss/(gain) on sale of assets, net
|
|
|
3,357
|
|
|
|
1,179
|
|
|
(2,178)
|
|
|
(64.9)
|
%
|
||
Vessel impairment charge
|
|
|
144,688
|
|
|
|
-
|
|
|
(144,688)
|
|
(100.0)
|
%
|
|||
Gain from vessel insurance proceeds
|
(25,064
|
)
|
-
|
|
25,064
|
|
|
(100.0)
|
%
|
|||||||
Gain on contract cancellation
|
|
|
(6,202
|
)
|
|
|
-
|
|
6,202
|
|
(100.0)
|
%
|
||||
Contract termination fees and forfeiture of vessels/vessels under construction deposits
|
-
|
41,339
|
41,339
|
-
|
||||||||||||
General and administrative expenses
|
|
|
123,247
|
|
|
|
145,935
|
|
|
22,688
|
|
|
18.4
|
%
|
||
Legal settlements and other, net
|
-
|
(9,360)
|
(9,360)
|
-
|
||||||||||||
Operating income
|
|
|
169,660
|
|
|
|
15,854
|
|
|
(153,806)
|
|
|
(90.7)
|
%
|
||
OTHER INCOME /(EXPENSES):
|
|
|
|
|||||||||||||
Interest and finance costs
|
|
|
(146,173
|
)
|
|
|
(210,128
|
)
|
|
(63,955
|
)
|
|
43.8
|
%
|
||
Interest income
|
|
|
16,575
|
|
|
|
4,203
|
|
|
(12,372
|
)
|
|
(74.6)
|
%
|
||
Loss on interest rate swaps
|
|
|
(68,943
|
)
|
|
|
(54,073)
|
|
14,870
|
|
|
(21.6)
|
%
|
|||
Other, net
|
|
|
9,023
|
|
|
|
(492)
|
|
|
(9,515
|
)
|
|
(105.5)
|
%
|
||
Total other expenses, net
|
|
|
(189,518
|
)
|
|
|
(260,490
|
)
|
|
(70,972
|
)
|
|
37.4
|
%
|
||
LOSS BEFORE INCOME TAXES
|
|
|
(19,858)
|
|
|
|
(244,636
|
)
|
|
(224,778
|
)
|
|
1,131.9
|
%
|
||
Income taxes
|
|
|
(27,428
|
)
|
|
|
(43,957
|
)
|
|
(16,529
|
)
|
|
60.3
|
%
|
||
NET LOSS
|
|
|
(47,286)
|
|
|
|
(288,593
|
)
|
|
(241,307
|
)
|
|
510.3
|
%
|
||
Less: Net (income)/loss attributable to non-controlling interests
|
|
|
(22,842)
|
|
|
|
41,815
|
|
64,657
|
|
|
(283.1)
|
%
|
|||
NET LOSS ATTRIBUTABLE TO DRYSHIPS INC.
|
|
$
|
(70,128)
|
|
|
$
|
(246,778)
|
|
$
|
(176,650
|
)
|
|
251.9
|
%
|
|
|
Year ended December 31,
|
|
|
|
|
|
|
|
|||||||
|
|
2010
|
|
|
2011
|
|
|
Change
|
|
|||||||
REVENUES:
|
|
|
|
|
||||||||||||
Revenues
|
|
$
|
859,745
|
|
|
$
|
1,077,662
|
|
|
$
|
217,917
|
|
|
|
25.3
|
%
|
EXPENSES:
|
|
|
|
|
||||||||||||
Voyage expenses
|
|
|
27,433
|
|
|
|
20,573
|
|
|
|
(6,860
|
)
|
|
|
(25.0
|
)%
|
Vessels, drilling rigs and drillships operating expenses
|
|
|
190,614
|
|
|
|
373,122
|
|
|
|
182,508
|
|
|
|
95.7
|
%
|
Depreciation and amortization
|
|
|
192,891
|
|
|
|
274,281
|
|
|
|
81,390
|
|
|
|
42.2
|
%
|
Loss/(gain) on sale of assets, net
|
|
|
(9,435
|
)
|
|
|
3,357
|
|
|
|
12,792
|
|
|
|
(135.6
|
)%
|
Vessel impairment charge
|
|
|
3,588
|
|
|
|
144,688
|
|
|
|
141,100
|
|
|
|
3,932.6
|
%
|
Gain from vessel insurance proceeds
|
|
|
—
|
|
|
|
(25,064
|
)
|
|
|
(25,064
|
)
|
|
|
—
|
|
Gain on contract cancellation
|
|
|
—
|
|
|
|
(6,202
|
)
|
|
|
(6,202
|
)
|
|
|
—
|
|
General and administrative expenses
|
|
|
88,576
|
|
|
|
123,247
|
|
|
|
34,671
|
|
|
|
39.1
|
%
|
Operating income
|
|
|
366,078
|
|
|
|
169,660
|
|
|
|
(196,418
|
)
|
|
|
(53.7
|
)%
|
OTHER INCOME /(EXPENSES):
|
|
|
|
|
||||||||||||
Interest and finance costs
|
|
|
(66,825
|
)
|
|
|
(146,173
|
)
|
|
|
(79,348
|
)
|
|
|
118.7
|
%
|
Interest income
|
|
|
21,866
|
|
|
|
16,575
|
|
|
|
(5,291
|
)
|
|
|
(24.2
|
)%
|
Loss on interest rate swaps
|
|
|
(120,505
|
)
|
|
|
(68,943
|
)
|
|
|
51,562
|
|
|
|
(42.8
|
)%
|
Other, net
|
|
|
10,272
|
|
|
|
9,023
|
|
|
|
(1,249
|
)
|
|
|
(12.2
|
)%
|
Total other expenses, net
|
|
|
(155,192
|
)
|
|
|
(189,518
|
)
|
|
|
(34,326
|
)
|
|
|
26.8
|
%
|
INCOME/(LOSS) BEFORE INCOME TAXES
|
|
|
210,886
|
|
|
|
(19,858
|
)
|
|
|
(230,744
|
)
|
|
|
(109.4
|
)%
|
Income taxes
|
|
|
(20,436
|
)
|
|
|
(27,428
|
)
|
|
|
(6,992
|
)
|
|
|
34.2
|
%
|
NET INCOME/ (LOSS)
|
|
|
190,450
|
|
|
|
(47,286
|
)
|
|
|
(237,736
|
)
|
|
|
(124.8
|
)%
|
Less: Net income attributable to non-controlling interests
|
|
|
(2,123
|
)
|
|
|
(22,842
|
)
|
|
|
(20,719
|
)
|
|
|
975.9
|
%
|
NET INCOME/(LOSS) ATTRIBUTABLE TO DRYSHIPS INC.
|
|
$
|
188,327
|
|
|
$
|
(70,128
|
)
|
|
$
|
(258,455
|
)
|
|
|
(137.2
|
)%
|
|
Payments due by period
|
|||||||||||||||||||
Obligations
|
Total
|
Less than 1
year
|
1-3 years
|
3-5 years
|
More than
5 years
|
|||||||||||||||
(In thousands of Dollars)
|
|
|
|
|
|
|||||||||||||||
Long-term debt (1)
|
$ | 4,548,839 | $ | 1,118,005 | $ | 1,053,334 | $ | 2,020,000 | $ | 357,500 | ||||||||||
Interest and borrowing fees (2)
|
999,759 | 239,491 | 458,650 | 236,691 | 64,927 | |||||||||||||||
Shipbuilding contracts – Vessels
|
511,915 | 365,795 | 146,120 | — | — | |||||||||||||||
Shipbuilding contracts – Drillships (3)
|
1,566,876 | 1,179,776 | 387,100 | — | — | |||||||||||||||
Retirement Plan Benefits (4)
|
2,954 | 93 | 270 | 401 | 2,190 | |||||||||||||||
Operating leases (5)
|
5,014 | 2,774 | 1,818 | 422 | — | |||||||||||||||
Total | $ | 7,635,357 | $ | 2,905,934 | $ | 2,047,292 | $ | 2,257,514 | $ | 424,617 |
(1)
|
As further discussed in Note 11 to our consolidated financial statements, the outstanding balance of our long-term debt at December 31, 2012, was $4.5 billion (gross of unamortized deferred financing fees and debt discount of $162.1 million), which was used to partially finance the expansion of our fleet and for the construction of our drilling rigs. The loans bear interest at LIBOR plus a margin, except for an amount of $458.3 million from the Loan facilities which are based on a fixed rate. The amounts in the table under "Long Term Debt" do not include any projected interest payments.
|
Loan repayments as per original terms of loan agreements
|
Payments due by period
|
|||||||||||||||||||
Total
|
Less than 1
year
|
1-3 years
|
3-5 years
|
More than
5 years
|
||||||||||||||||
(In thousands of Dollars)
|
|
|
|
|
|
|||||||||||||||
Long-term debt (1)
|
$ | 4,548,839 | $ | 328,683 | $ | 1,434,032 | $ | 2,295,345 | $ | 490,779 | ||||||||||
(2)
|
Our long-term debt outstanding as of December 31, 2012 bears variable interest at margin over LIBOR, but such variable interest is fixed by our existing interest rate swaps. The calculation of interest payments is based on the weighted average fixed interest rate ranging from 4.46% to 9.50%.
|
(3)
|
As of December 31, 2012, an amount of $879.4 million was paid to the shipyard representing the first installment for the construction cost of our seventh generation hulls under construction.
|
(4)
|
During 2012, Ocean Rig UDW had three defined plans for employees managed and funded through Norwegian life insurance companies. The pension plan covered 44 employees by the year ended 2012. Pension liabilities and pension costs are calculated based on the crucial cost method as determined by an independent third party actuary.
|
(5)
|
Ocean Rig UDW has operating leases mostly relating to premises , the most significant being its offices in Stavanger, Rio de Janeiro, Jersey and Aberdeen.
|
Name*
|
Age
|
|
|
Position
|
George Economou
|
60
|
|
|
Chairman, President, Chief Executive Officer and Class A Director
|
Harry Kerames
|
58
|
|
|
Class A Director
|
Vassilis Karamitsanis
|
36
|
|
|
Class A Director
|
Evangelos Mytilinaios
|
63
|
|
|
Class B Director
|
George Xiradakis
|
48
|
|
|
Class B Director
|
Chryssoula Kandylidis
|
58
|
|
|
Class C Director
|
George Demathas
|
59
|
|
|
Class C Director
|
Ziad Nakhleh
|
40
|
|
|
Chief Financial Officer
|
Niki Fotiou
|
43
|
|
|
Senior Vice President Head of Accounting and Reporting
|
Anastasia Pavli
|
30
|
|
|
Secretary
|
|
·
|
engaging our external and internal auditors;
|
|
·
|
approving in advance all audit and non-audit services provided by the auditors;
|
|
·
|
approving all fees paid to the auditors;
|
|
·
|
reviewing the qualification and independence of our external auditors;
|
|
·
|
reviewing our relationship with external auditors, including considering audit fees which should be paid as well as any other fees which are payable to auditors in respect of non-audit activities, discussing with the external auditors such issues as compliance with accounting principles and any proposals which the external auditors have made vis-à-vis our accounting principles and standards and auditing standards;
|
|
·
|
overseeing our financial reporting and internal control functions;
|
|
·
|
overseeing our whistleblower's process and protection; and
|
|
·
|
overseeing general compliance with related regulatory requirements.
|
|
·
|
each person or entity that we know beneficially owns 5% or more of our common shares;
|
|
·
|
each of our executive officers, directors and key employees; and
|
|
·
|
all our executive officers, directors and key employees as a group.
|
Name and Address of Beneficial Owner(1)
|
|
Number of
Shares Owned
|
|
|
Percent of
Class(2)
|
|
||
George Economou (3)
|
|
|
60,125,177
|
|
|
|
14.8
|
%
|
Harry Kerames
|
|
|
—
|
|
|
|
*
|
|
Vassilis Karamitsanis
|
|
|
—
|
|
|
|
*
|
|
Evangelos Mytilinaios
|
|
|
—
|
|
|
|
*
|
|
George Xiradakis
|
|
|
—
|
|
|
|
*
|
|
Chryssoula Kandylidis
|
|
|
—
|
|
|
|
*
|
|
George Demathas
|
|
|
—
|
|
|
|
*
|
|
Ziad Nakhleh
|
|
|
—
|
|
|
|
*
|
|
Niki Fotiou
|
|
|
—
|
|
|
|
*
|
|
Anastasia Pavli
|
|
|
—
|
|
|
|
*
|
|
Executive Officers, Key Employees and Directors as a Group
|
|
|
60,262,198
|
|
|
|
4.9
|
%
|
*
|
Less than one percent.
|
(1)
|
Unless otherwise indicated, the business address of each beneficial owner identified is c/o DryShips, 74-76 V. Ipeirou Street, Amaroussion GR 151 25 Greece.
|
(2) | Based on 403,762,244 common shares outstanding as of March 22, 2013. |
(3)
|
Mr. Economou may be deemed to beneficially own 10,994,910 of these shares through Elios Investments Inc., which is a wholly-owned subsidiary of the Entrepreneurial Spirit Foundation, a Lichtenstein foundation, or the Foundation, the beneficiaries of which are Mr. Economou and members of his family. Mr. Economou may be deemed to beneficially own 14,500,000 of these shares through Fabiana, a Marshall Islands corporation, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to beneficially own 254,512 of these shares through Goodwill Shipping Company Limited, a Malta corporation, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to beneficially own 963,667 of these shares, as well as an additional 3,500,000 shares that are issuable upon the exercise of warrants, through Sphinx Investment Corp., a Marshall Islands corporation, of which Mr. Economou is the controlling person. Each warrant entitles the holder to purchase one of our common shares. The warrants have been issued to Sphinx Investment Corp. pursuant to a Securities Purchase Agreement dated March 6, 2010, all of which (i) are immediately exercisable at an average exercise price of $22.50 per common share, other than 500,000 warrants that are exercisable at an exercise price of $30.00 per common share; and (ii) expire on April 7, 2014. Mr. Economou may be deemed to beneficially own 254,512 of these shares through Goodwill Shipping Company Limited, a Malta corporation, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to beneficially own 29,962,088 of these shares through Entrepreneurial Spirit Holdings Inc., a Liberian corporation that is wholly-owned by the Foundation.
|
For the Year Ended
|
|
Low
|
|
|
High
|
|
||
December 31, 2008
|
$ |
3.54
|
$ |
110.74
|
||||
December 31, 2009
|
$ |
2.79
|
$ |
16.58
|
||||
December 31, 2010
|
$ |
3.42
|
$ |
6.77
|
||||
December 31, 2011
|
|
$ |
1.97
|
|
$ |
5.50
|
||
December 31, 2012
|
$ |
1.58
|
$ |
3.74
|
For the Quarter Ended
|
|
|
|
|
|
|
|
|
March 31, 2011
|
|
$ |
4.50
|
|
|
$ |
5.50
|
|
June 30, 2011
|
|
$ |
3.63
|
|
|
$ |
5.03
|
|
September 30, 2011
|
|
$ |
2.21
|
|
|
$ |
4.31
|
|
December 31, 2011
|
|
$ |
1.97
|
|
$ |
2.99
|
||
March 31, 2012
|
$ |
2.08
|
$ |
3.74
|
||||
June 30, 2012
|
$ |
1.96
|
$ |
3.50
|
||||
September 30, 2012
|
$ |
2.11
|
$ |
2.63
|
||||
December 31, 2012
|
$ |
1.58
|
$ |
2.43
|
For the Month Ended
|
||||||||
September 2012
|
$ |
2.20
|
$ |
2.63
|
||||
October 2012
|
$ |
2.20
|
$ |
2.43
|
||||
November 2012
|
$ |
1.64
|
$ |
2.37
|
||||
December 2012
|
$ |
1.58
|
$ |
1.83
|
||||
January 2013
|
$ |
1.64
|
$ |
2.28
|
||||
February 2013
|
$ |
1.93
|
$ |
2.30
|
||||
March 1, 2013 through March 21, 2013
|
$ |
1.80
|
$ |
2.09
|
|
·
|
more than 50% of the Company's stock, in terms of value, is beneficially owned by individuals who are residents of a qualified foreign country, which the Company refers to as the "50% Ownership Test"; or
|
|
·
|
the Company's stock is "primarily and regularly" traded on an established securities market located in the United States or in a qualified foreign country, which the Company refers to as the "Publicly Traded Test".
|
|
·
|
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
|
·
|
at least 50% of the average value of the assets held by the Company during such taxable year produce, or are held for the production of, passive income.
|
|
·
|
the excess distribution or gain would be allocated ratably over the Non-Electing U.S. Holders' aggregate holding period for the common shares;
|
|
·
|
the amount allocated to the current taxable year and any taxable year before we became a PFIC would be taxed as ordinary income; and
|
|
·
|
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed tax deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
|
·
|
the gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business in the United States. If the Non-U.S. Holder is entitled to the benefits of an income tax treaty with respect to that gain, that gain is taxable only if it is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or
|
|
·
|
the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
|
|
·
|
ails to provide an accurate taxpayer identification number;
|
|
·
|
is notified by the IRS that he has failed to report all interest or dividends required to be shown on his U.S. federal income tax returns; or
|
|
·
|
in certain circumstances, fails to comply with applicable certification requirements.
|
(U.S. Dollars in Thousands)
|
|
2011
|
|
|
2012
|
|
||
Audit fees
|
|
$
|
2,665
|
|
$
|
1,866
|
|
|
Audit related fees
|
|
|
—
|
|
|
—
|
|
|
Tax fees
|
|
|
75
|
|
|
178
|
|
|
All other fees
|
|
|
—
|
|
|
—
|
|
|
Total fees | $ |
2,740
|
$ |
2,044
|
|
·
|
In lieu of obtaining shareholder approval prior to the issuance of designated securities or the adoption of equity compensation plans or material amendments to such equity compensation plans, we will comply with provisions of the BCA, providing that the board of directors approve share issuances and adoptions of and material amendments to equity compensation plans.
|
|
·
|
Our board of directors will not hold regularly scheduled meetings at which only independent directors are present.
|
|
·
|
As a foreign private issuer, we are not required to solicit proxies or provide proxy statements to NASDAQ pursuant to NASDAQ corporate governance rules or Marshall Islands law. Consistent with Marshall Islands law and as provided in our Amended and Restated Bylaws, we will notify our shareholders of meetings between 15 and 60 days before the meeting. This notification will contain, among other things, information regarding business to be transacted at the meeting. In addition, our Amended and Restated Bylaws provide that shareholders must give us between 150 and 180 days advance notice to properly introduce any business at a meeting of shareholders.
|
1.1
|
|
Articles of Amendment to Articles of Incorporation of DryShips Inc., incorporated by reference to Exhibit 3.1 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on January 18, 2008.
|
|
1.2
|
|
Amended and Restated Bylaws of DryShips Inc., incorporated by reference to Exhibit 3.1 to the Registration Statement on Form F-3 of DryShips Inc. (File No. 333-169235), filed with the SEC on September 7, 2010.
|
|
1.3
|
|
Certificate of Designations of Rights, Preferences and Privileges of Series A Convertible Preferred Stock of DryShips Inc., incorporated by reference to Exhibit 2.5 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended
December 31, 2010, filed with the SEC on April 15, 2011.
|
|
2.1
|
|
Form of Common Share Certificate, incorporated by reference to Exhibit 2.1 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
2.2
|
|
Form of Global Note, incorporated by reference to Exhibit 2.2 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
2.3
|
|
Indenture dated November 17, 2009, incorporated by reference to Exhibit 4.7 to the Post-effective Amendment to the Registration Statement on Form F-3 of DryShips Inc. (File No. 333-146540), filed with the SEC on November 17, 2009.
|
|
2.4
|
|
First Supplemental Indenture, dated November 25, 2009, to the Indenture dated November 17, 2009, incorporated by reference to Exhibit 3 to the Report on Form 6-K of DryShips Inc., filed with the SEC on November 25, 2009.
|
|
2.5
|
|
Bond Agreement between Ocean Rig UDW Inc. and Norsk Tillitsmann ASA, dated April 14, 2011, incorporated by reference to Exhibit 10.40 of the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
|
2.6
|
Indenture, dated as of September 20, 2012, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017, incorporated by reference to exhibit 2.4 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
2.7
|
Supplemental Indenture, dated as of January 23, 2013, amending and supplementing the Indenture, dated as of September 20, 2012, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017, incorporated by reference to exhibit 2.5 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
2.8
|
Second Supplemental Indenture, dated as of January 30, 2013, amending and supplementing the Indenture, dated as of September 20, 2012, as supplemented by a supplemental indenture, dated as of January 23, 2013, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017, incorporated by reference to exhibit 2.6 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
2.9
|
Third Supplemental Indenture, dated as of March 15, 2013, amending and supplementing the Indenture, dated as of September 20, 2012, as supplemented by a supplemental indenture, dated as of January 23, 2013, and a second supplemental indenture dated as of January 30, 2013, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., and each of the Guarantors party thereto, U.S. Bank National Association, as Trustee, and Deutsche Bank Trust Company Americas, as Noteholder Collateral Agent, Registrar and Paying Agent, relating to 6.50% Senior Secured Notes Due 2017, incorporated by reference to exhibit 2.7 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
4.1
|
|
Stockholders Rights Agreement, dated January 18, 2008, by and between DryShips Inc. and American Stock Transfer & Trust Company, as Rights Agent, incorporated by reference to Exhibit 4.2 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on January 18, 2008.
|
|
4.2
|
|
Amendment No. 1, dated as July 9, 2009, to Stockholders Rights Agreement, incorporated by reference to Exhibit 99.1 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on July 15, 2009.
|
|
4.3
|
|
Amendment No. 2, dated as of April 21, 2010, to Stockholders Rights Agreement, incorporated by reference to Exhibit 99.1 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on April 27, 2010.
|
|
4.4
|
|
Amended and Restated 2008 Equity Incentive Plan of DryShips Inc., incorporated by reference to Exhibit 4.1 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.5
|
|
Loan Agreement, dated March 31, 2006, by and between DryShips Inc., as Borrower, the banks and financial institutions listed therein, as Lenders and Swap Banks, HSH Nordbank AG, as Agent, Security Trustee, Lead Arranger, Lead Bookrunner and Joint Underwriter, and The Governor and Company of the Bank of Scotland, as Joint Bookrunner and Joint Underwriter, relating to a term loan and short-term credit facilities of up to $518,750,000, or the HSH Nordbank Senior Loan Agreement, incorporated by reference to Exhibit 4.4 to the Annual Report on Form 20-F of DryShips for the fiscal year ended December 31, 2005, filed with the SEC on April 21, 2006.
|
|
4.6
|
|
Loan Agreement, dated March 31, 2006, by and between DryShips Inc., as Borrower, the banks and financial institutions listed therein, as Lenders and Swap Banks, HSH Nordbank AG, as Agent, Security Trustee, Lead Arranger and Lead Bookrunner, and The Governor and Company of the Bank of Scotland, as Joint Bookrunner, relating to a term loan and short-term credit facilities of up to$110,000,000, or the HSH Nordbank Junior Loan Agreement, incorporated by reference to Exhibit 4.5 to the Company's Annual Report on Form 20-F for the fiscal year ended
December 31, 2005, filed with the SEC on April 21, 2006.
|
|
4.7
|
|
Supplemental Letter, dated May 15, 2006, to the HSH Nordbank Senior Loan Agreement and the HSH Nordbank Junior Loan Agreement, incorporated by reference to Exhibit 4.5 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.8
|
|
Supplemental Agreement, dated November 29, 2006, to the HSH Nordbank Senior Loan Agreement, incorporated by reference to Exhibit 4.5 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 31, 2008.
|
|
4.9
|
|
Supplemental Agreement, dated November 29, 2006, to the HSH Nordbank Junior Loan Agreement, incorporated by reference to Exhibit 4.6 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 31, 2008.
|
|
4.10
|
|
Amending and Restating Agreement, dated May 23, 2007, relating to the HSH Nordbank Senior Loan Agreement, as supplemented and amended by a supplemental letter dated May 15, 2006 and as further amended and supplemented by a supplemental agreement dated November 29, 2006, incorporated by reference to Exhibit 4.8 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 31, 2008.
|
4.11
|
|
Amending and Restating Agreement, dated May 23, 2007, relating to the HSH Nordbank Junior Loan Agreement, as supplemented and amended by a supplemental letter dated May 15, 2006 and as further amended and supplemented by a supplemental agreement dated November 29, 2006, incorporated by reference to Exhibit 4.9 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 31, 2008
|
|
4.12
|
|
Supplemental Agreement, dated February 27, 2008, to the HSH Nordbank Senior Loan Agreement, as supplemented and amended by a supplemental letter dated May 15, 2006 and as further amended and supplemented by a supplemental agreement dated November 29, 2006 and as further amended and restated by an amending and restating agreement dated May 23, 2007, incorporated by reference to Exhibit 4.10 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.13
|
|
Supplemental Agreement, dated February 27, 2008, to the HSH Nordbank Junior Loan Agreement, as supplemented and amended by a supplemental letter dated May 15, 2006 and as further amended and supplemented by a supplemental agreement dated November 29, 2006 and as further amended and restated by an amending and restating agreement dated May 23, 2007, incorporated by reference to Exhibit 4.11 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.14
|
|
Supplemental Letter, dated April 23, 2008, to the HSH Nordbank Senior Loan Agreement, as supplemented and amended by a supplemental letter dated May 15, 2006, a supplemental agreement dated November 29, 2006 and a supplemental agreement dated February 27, 2008 and as amended and restated by an amending and restating agreement dated May 23, 2007, incorporated by reference to Exhibit 4.12 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.15
|
|
Supplemental Letter, dated April 23, 2008, to the HSH Nordbank Junior Loan Agreement, as supplemented and amended by a supplemental letter dated May 15, 2006, a supplemental agreement dated November 29, 2006 and a supplemental agreement dated February 27, 2008 and as amended and restated by an amending and restating agreement dated May 23, 2007, incorporated by reference to Exhibit 4.13 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.16
|
|
Supplemental Agreement, dated November 17, 2009, to the HSH Nordbank Senior Loan Agreement, as supplemented, amended and restated from time to time, incorporated by reference to Exhibit 4.15 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.17
|
|
Supplemental Agreement, dated November 17, 2009, to the HSH Nordbank Junior Loan Agreement, as supplemented, amended and restated from time to time, incorporated by reference to Exhibit 4.14 to the Company's Annual Report on Form 20-F for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.18
|
|
Supplemental Letter, dated September 29, 2010, to the HSH Nordbank Senior Loan Agreement, as supplemented, amended and restated from time to time, incorporated by reference to Exhibit 1 to the Report on Form 6-K of DryShips Inc., filed with the SEC on September 30, 2010.
|
|
4.19
|
|
Supplemental Letter, dated September 29, 2010, to the HSH Nordbank Junior Loan Agreement, as supplemented, amended and restated from time to time, incorporated by reference to Exhibit 2 to the Report on Form 6-K of DryShips Inc., filed with the SEC on September 30, 2010.
|
|
4.20
|
|
Supplemental Letter, dated February 9, 2012, to the HSH Nordbank Senior Loan Agreement, as supplemented, amended and restated from time to time, incorporated by reference to Exhibit 4.20 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.21
|
|
Supplemental Letter, dated February 9, 2012, to the HSH Nordbank Junior Loan Agreement, as supplemented, amended and restated from time to time, incorporated by reference to Exhibit 4.21 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.22
|
|
Pledge and Security Agreement, dated as of February 9, 2012, made by DryShips Inc. to HSH Nordbank AG, incorporated by reference to Exhibit 4.22 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.23
|
|
Uncertificated Securities Control Agreement, dated as of February 9, 2012, among DryShips Inc., HSH Nordbank AG and Ocean Rig UDW Inc., incorporated by reference to Exhibit 4.23 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.24
|
Supplemental Letter, dated September 27, 2012, to the HSH Nordbank Senior Loan Agreement, as supplemented, amended and restated from time to time.
|
4.25
|
Supplemental Letter, dated September 27, 2012, to the HSH Nordbank Junior Loan Agreement, as supplemented, amended and restated from time to time.
|
||
4.26
|
Pledge and Security Agreement, dated as of September 27, 2012, made by DryShips Inc. to HSH Nordbank AG.
|
||
4.27
|
Uncertificated Securities Control Agreement, dated as of September 27, 2012, among DryShips Inc., HSH Nordbank AG and Ocean Rig UDW Inc.
|
||
4.28
|
|
Loan Agreement, dated October 2, 2007, by and between Ioli Owning Company Limited and Deutsche Schiffsbank Aktiengesellschaft relating to a secured loan of up to $35,000,000, incorporated by reference to Exhibit 4.10 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 31, 2008.
|
|
4.29
|
|
Waiver Letter, dated December 11, 2009, to a Loan Agreement, dated October 2, 2007, by and between Ioli Owning Company Limited and Deutsche Schiffsbank Aktiengesellschaft relating to a secured loan of up to $35,000,000, incorporated by reference to Exhibit 4.21 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.30
|
|
First Supplemental Agreement, dated February 25, 2010, to a Loan Agreement, dated October 2, 2007, by and between Ioli Owning Company Limited and Deutsche Schiffsbank Aktiengesellschaft relating to a secured loan of up to $35,000,000, incorporated by reference to Exhibit 2 to the Report on Form 6-K of DryShips Inc., filed with the SEC on September 30, 2010.
|
|
4.31
|
|
Waiver Letter, dated May 19, 2010, to a Loan Agreement, dated October 2, 2007, by and between Ioli Owning Company Limited and Deutsche Schiffsbank Aktiengesellschaft relating to a secured loan of up to $35,000,000, as amended, incorporated by reference to Exhibit 4.23 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.32
|
|
Waiver Letter, dated September 22, 2010, to a Loan Agreement, dated October 2, 2007, by and between Ioli Owning Company Limited and Deutsche Schiffsbank Aktiengesellschaft relating to a secured loan of up to $35,000,000, as amended, incorporated by reference to Exhibit 1 to the Report on Form 6-K of DryShips Inc., filed with the SEC on September 30, 2010.
|
|
4.33
|
|
Waiver Letter, dated September 6, 2011, to a Loan Agreement, dated October 2, 2007, by and between Ioli Owning Company Limited and Deutsche Schiffsbank Aktiengesellschaft relating to a secured loan of up to $35,000,000, as amended, incorporated by reference to Exhibit 4.29 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.34
|
|
Second Supplemental Agreement, dated November 10, 2011, to a Loan Agreement, dated October 2, 2007, by and between Ioli Owning Company Limited and Deutsche Schiffsbank Aktiengesellschaft relating to a secured loan of up to $35,000,000, as amended and supplemented by a First Supplemental Agreement dated February 25, 2010, incorporated by reference to Exhibit 4.30 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.35
|
|
Loan Agreement, dated October 5, 2007, by and between Boone Star Owners Inc. and Iokasti Owning Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $90,000,000, incorporated by reference to Exhibit 4.22 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.36
|
|
Waiver Letter, dated April 15, 2009, to a Loan Agreement, dated October 5, 2007, by and between Boone Star Owners Inc. and Iokasti Owning Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $90,000,000, incorporated by reference to Exhibit 4.26 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.37
|
|
First Supplemental Agreement, dated July 30, 2009, to a Loan Agreement, dated October 5, 2007, by and between Boone Star Owners Inc. and Iokasti Owning Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $90,000,000, incorporated by reference to Exhibit 4.21 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.38
|
|
Second Supplemental Agreement, dated August 25, 2010, to a Loan Agreement, dated October 5, 2007, by and between Boone Star Owners Inc. and Iokasti Owning Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $90,000,000, as amended and supplemented by a supplemental agreement dated July 30, 2009, incorporated by reference to Exhibit 4.28 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.39
|
|
Supplemental Letter, dated September 16, 2011, to a Loan Agreement, dated October 5, 2007, by and between Boone Star Owners Inc. and Iokasti Owning Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $90,000,000, as amended and supplemented, incorporated by reference to Exhibit 4.35 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.40
|
|
Loan Agreement, dated November 16, 2007, by and between Iason Owning Company Limited, as Borrower, and EFG Eurobank Ergasias S.A., as Bank, relating to a loan of up to $47,000,000, incorporated by reference to Exhibit 4.11 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 31, 2008.
|
|
4.41
|
|
Waiver Letter, dated February 25, 2009, to a Loan Agreement, dated November 16, 2007, by and between Iason Owning Company Limited, as Borrower, and EFG Eurobank Ergasias S.A., as Bank, relating to a loan of up to $47,000,000, incorporated by reference to Exhibit 4.30 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.42
|
|
Waiver Letter, dated November, 11, 2009, to a Loan Agreement, dated November 16, 2007, by and between Iason Owning Company Limited, as Borrower, and EFG Eurobank Ergasias S.A., as Bank, relating to a loan of up to $47,000,000, incorporated by reference to Exhibit 4.31 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.43
|
|
Waiver Letter, dated February 24, 2010, to a Loan Agreement, dated November 16, 2007, by and between Iason Owning Company Limited, as Borrower, and EFG Eurobank Ergasias S.A., as Bank, relating to a loan of up to $47,000,000, incorporated by reference to Exhibit 4.23 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.44
|
|
Supplemental Agreement, dated April 15, 2010, to a Loan Agreement, dated November 16, 2007, by and between Iason Owning Company Limited, as Borrower, and EFG Eurobank Ergasias S.A., as Bank, relating to a loan of up to $47,000,000, incorporated by reference to Exhibit 4.33 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.45
|
Second Supplemental Agreement, dated January 27, 2011, relating to a Loan Agreement, dated November 16, 2007, by and between Iason Owning Company Limited, as Borrower, and EFG Eurobank Ergasias S.A., as Bank, relating to a loan of up to $47,000,000, as amended and supplemented by a first supplemental agreement dated April 15, 2010, incorporated by reference to Exhibit 4.42 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
||
4.46
|
|
Supplemental Letter, dated June 29, 2011, to a Loan Agreement, dated November 16, 2007, by and between Iason Owning Company Limited, as Borrower, and EFG Eurobank Ergasias S.A., as Bank, relating to a loan of up to $47,000,000, as amended and supplemented by a first supplemental agreement dated April 15, 2010 and as further amended and supplemented by a second supplemental agreement dated January 27, 2011, incorporated by reference to Exhibit 4.41 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.47
|
|
Loan Agreement, dated December 4, 2007, by and among Team-Up Owning Company Limited and Orpheus Owning Company Limited, as Borrowers, the banks and financial institutions listed therein, as Banks, and DnB NOR Bank ASA, as Arranger, Agent, Security Agent and Account Bank, relating to a loan of up to $101,150,000, incorporated by reference to Exhibit 4.12 to the Annual Report on from 20-F of DryShips Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 31, 2008.
|
|
4.48
|
|
Waiver Letter, dated May 19, 2010, to a Loan Agreement, dated December 4, 2007, by and among Team-Up Owning Company Limited and Orpheus Owning Company Limited, as Borrowers, the banks and financial institutions listed therein, as Banks, and DnB NOR Bank ASA, as Arranger, Agent, Security Agent and Account Bank, relating to a loan of up to $101,150,000, incorporated by reference to Exhibit 4.35 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.49
|
|
Supplemental Agreement, dated June 11, 2009, to a Loan Agreement, dated December 4, 2007, by and among Team-Up Owning Company Limited and Orpheus Owning Company Limited, as Borrowers, the banks and financial institutions listed therein, as Banks, and DnB NOR Bank ASA, as Arranger, Agent, Security Agent and Account Bank, relating to a loan of up to $101,150,000, incorporated by reference to Exhibit 4.25 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.50
|
Second Supplemental Agreement, dated January 26, 2011, to a Loan Agreement, dated December 4, 2007, by and among Team-Up Owning Company Limited and Orpheus Owning Company Limited, as Borrowers, the banks and financial institutions listed therein, as Banks, and DnB NOR Bank ASA, as Arranger, Agent, Security Agent and Account Bank, relating to a loan of up to $101,150,000, as amended and supplemented by a first supplemental agreement dated 11 June 2009, incorporated by reference to Exhibit 4.47 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
||
4.51
|
|
Supplemental Letter, dated September 23, 2011, to a Loan Agreement, dated December 4, 2007, by and among Team-Up Owning Company Limited and Orpheus Owning Company Limited, as Borrowers, the banks and financial institutions listed therein, as Banks, and DnB NOR Bank ASA, as Arranger, Agent, Security Agent and Account Bank, relating to a loan of up to $101,150,000, as amended and supplemented by a first supplemental agreement dated 11 June 2009 and as further amended and supplemented by a second supplemental agreement dated 26 January 2011, incorporated by reference to Exhibit 4.46 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.52
|
|
Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, incorporated by reference to Exhibit 4.33 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.53
|
|
First Supplemental Agreement, dated December 12, 2008, to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, incorporated by reference to Exhibit 4.35 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.54
|
|
Waiver Letter, dated April 15, 2009, to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, as amended and supplemented by a first supplemental agreement dated December 12, 2008, incorporated by reference to Exhibit 4.47 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.55
|
|
Second Supplemental Agreement, dated July 30, 2009, to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, as amended and supplemented by a first supplemental agreement dated December 12, 2008, incorporated by reference to Exhibit 4.36 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.56
|
|
Waiver Letter, dated November 27, 2009, to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, as amended and supplemented by a first supplemental agreement dated December 12, 2008 and a second supplemental agreement dated July 30, 2009, incorporated by reference to Exhibit 4.49 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.57
|
|
Amending and Restating Loan Agreement, dated January 25, 2010, to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, as amended and supplemented by a first supplemental agreement dated December 12, 2008 and a second supplemental agreement dated July 30, 2009, incorporated by reference to Exhibit 4.50 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.58
|
|
Amended and Restated Loan Agreement, dated August 25, 2010, relating to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, as amended and restated on January 25, 2010 and as further amended and restated on August 25, 2010, incorporated by reference to Exhibit 4.51 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.59
|
|
Amended and Restated Loan Agreement, dated November 29, 2010, relating to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, as amended and restated on January 25, 2010, August 25, 2010 and November 29, 2010, incorporated by reference to Exhibit 4.52 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.60
|
|
Supplemental Letter, dated September 16, 2011, to a Loan Agreement, dated March 13, 2008, by and among Annapolis Shipping Company Limited, Atlas Owing Company Limited, Farat Shipping Company Limited and Lansat Shipping Company Limited, as Borrowers, and Piraeus Bank A.E., as Lender, relating to a loan facility of up to $130,000,000, as novated, amended and restated, incorporated by reference to Exhibit 4.56 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.61
|
|
Loan Agreement, dated May 5, 2008, by and among Dalian Star Owners Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, Dresdner Bank AG in Hamburg, as Agent and Security Trustee, and Dresdner Bank AG in Hamburg and West LB AG, as Swap Banks and Joint Arrangers, relating to a term loan facility of up to $90,000,000, incorporated by reference to Exhibit 4.34 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.62
|
|
Waiver Letter, dated October 22, 2009, to a Loan Agreement, dated May 5, 2008, by and between Dalian Star Owners Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, Dresdner Bank AG in Hamburg, as Agent and Security Trustee, and Dresdner Bank AG in Hamburg and West LB AG, as Swap Banks and Joint Arrangers, relating to a term loan facility of up to $90,000,000, incorporated by reference to Exhibit 4.38 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.63
|
|
Supplemental Agreement, dated May 10, 2010, to a Loan Agreement, dated May 5, 2008, by and among Dalian Star Owners Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, Dresdner Bank AG in Hamburg, as Agent and Security Trustee, and Dresdner Bank AG in Hamburg and West LB AG, as Swap Banks and Joint Arrangers, relating to a term loan facility of up to $90,000,000, incorporated by reference to Exhibit 4.55 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.64
|
|
Loan Agreement, dated May 13, 2008, by and among Ionian Traders Inc. and Norwalk Star Owners Inc., as Borrowers, Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG and others, as Lenders, Deutsche Schiffsbank Aktiengesellschaft, as Agent and Security Agent, and Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG, as Swap Providers, relating to a secured loan of $125,000,000, incorporated by reference to Exhibit 4.38 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.65
|
|
Waiver Letter, dated December 11, 2009, to a Loan Agreement, dated May 13, 2008, by and among Ionian Traders Inc. and Norwalk Star Owners Inc., as Borrowers, Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG and others, as Lenders, Deutsche Schiffsbank Aktiengesellschaft, as Agent and Security Agent, and Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG, as Swap Providers, relating to a secured loan of $125,000,000, incorporated by reference to Exhibit 4.58 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.66
|
|
First Supplemental Agreement, dated February 25, 2010, to a Loan Agreement, dated May 13, 2008, by and among Ionian Traders Inc. and Norwalk Star Owners Inc., as Borrowers, Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG and others, as Lenders, Deutsche Schiffsbank Aktiengesellschaft, as Agent and Security Agent, and Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG, as Swap Providers, relating to a secured loan of $125,000,000, incorporated by reference to Exhibit 4.44 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.67
|
|
Waiver Letter, dated May 19, 2010, to a Loan Agreement, dated May 13, 2008, by and among Ionian Traders Inc. and Norwalk Star Owners Inc., as Borrowers, Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG and others, as Lenders, Deutsche Schiffsbank Aktiengesellschaft, as Agent and Security Agent, and Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG, as Swap Providers, relating to a secured loan of $125,000,000, as amended, incorporated by reference to Exhibit 4.60 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.68
|
|
Waiver Letter, dated September 22, 2010, to a Loan Agreement, dated May 13, 2008, by and among Ionian Traders Inc. and Norwalk Star Owners Inc., as Borrowers, Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG and others, as Lenders, Deutsche Schiffsbank Aktiengesellschaft, as Agent and Security Agent, and Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG, as Swap Providers, relating to a secured loan of $125,000,000, as amended, incorporated by reference to Exhibit 1 to the Report on Form 6-K of DryShips Inc., filed with the SEC on September 30, 2010.
|
|
4.69
|
|
Waiver Letter, dated September 6, 2011, to a Loan Agreement, dated May 13, 2008, by and among Ionian Traders Inc. and Norwalk Star Owners Inc., as Borrowers, Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG and others, as Lenders, Deutsche Schiffsbank Aktiengesellschaft, as Agent and Security Agent, and Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG, as Swap Providers, relating to a secured loan of $125,000,000, as amended, incorporated by reference to Exhibit 4.66 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.70
|
|
Second Supplemental Agreement, dated November 10, 2011, to a Loan Agreement, dated May 13, 2008, by and among Ionian Traders Inc. and Norwalk Star Owners Inc., as Borrowers, Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG and others, as Lenders, Deutsche Schiffsbank Aktiengesellschaft, as Agent and Security Agent, and Deutsche Schiffsbank Aktiengesellschaft and Bayerische Hypo-Und Vereinsbank AG, as Swap Providers, relating to a secured loan of $125,000,000, as amended and supplemented by a First Supplemental Agreement dated February 25, 2010, incorporated by reference to Exhibit 4.67 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.71
|
|
Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, incorporated by reference to Exhibit 4.40 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.72
|
|
Waiver Letter, dated July 22, 2009, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, incorporated by reference to Exhibit 4.63 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.73
|
|
First Supplemental Agreement, dated October 8, 2009, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, incorporated by reference to Exhibit 4.46 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.74
|
|
Waiver Letter, dated November 23, 2009, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, as amended, incorporated by reference to Exhibit 4.65 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.75
|
|
Amending and Restating Loan Agreement, dated January 18, 2010, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, as supplemented and amended by a first supplemental agreement dated October 8, 2009, incorporated by reference to Exhibit 4.66 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.76
|
|
Supplemental Letter, dated June 10, 2010, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, as amended and supplemented by a supplemental agreement dated October 8, 2009 and as amended and restated by an amending and restating agreement dated January 18, 2010, incorporated by reference to Exhibit 4.67 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.77
|
|
Loan Agreement, dated July 23, 2008, by and among Cretan Traders Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, and Norddeutsche Landesbank Girozentrale, as Swap Bank, Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee, relating to a term loan facility of up to $126,400,000, incorporated by reference to Exhibit 4.41 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
|
4.78
|
|
Waiver Letter, dated July 24, 2009, to a Loan Agreement, dated July 23, 2008, by and among Cretan Traders Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, and Norddeutsche Landesbank Girozentrale, as Swap Bank, Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee, relating to a term loan facility of up to $126,400,000, incorporated by reference to Exhibit 4.69 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.79
|
|
Supplemental Agreement, dated October 12, 2009, to a Loan Agreement, dated July 23, 2008, by and among Cretan Traders Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, and Norddeutsche Landesbank Girozentrale, as Swap Bank, Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee, relating to a term loan facility of up to $126,400,000, incorporated by reference to Exhibit 4.48 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.80
|
|
Supplemental Letter, dated February 8, 2010, to a Loan Agreement, dated July 23, 2008, by and among Cretan Traders Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, and Norddeutsche Landesbank Girozentrale, as Swap Bank, Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee, relating to a term loan facility of up to $126,400,000, as amended and supplemented by a supplemental agreement dated October 12, 2009, incorporated by reference to Exhibit 4.71 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.81
|
|
Supplemental Agreement, dated September 9, 2011, in relation to a Loan Agreement, dated July 23, 2008, by and among Cretan Traders Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, and Norddeutsche Landesbank Girozentrale, as Swap Bank, Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee, relating to a term loan facility of up to $126,400,000, as amended and supplemented by a supplemental agreement dated October 12, 2009 and two supplemental letters dated July 24, 2009 and February 8, 2010, incorporated by reference to Exhibit 4.78 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.82
|
|
Supplemental Agreement, dated January 4, 2012, in relation to a Loan Agreement, dated July 23, 2008, by and among Cretan Traders Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, and Norddeutsche Landesbank Girozentrale, as Swap Bank, Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee, relating to a term loan facility of up to $126,400,000, as amended and supplemented by two supplemental agreements dated October 12, 2009 and September 9, 2011 and two supplemental letters dated July 24, 2009 and February 8, 2010, incorporated by reference to Exhibit 4.79 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
|
4.83
|
Fourth Supplemental Agreement, dated August 31, 2012, in relation to a Loan Agreement, dated July 23, 2008, by and among Cretan Traders Inc., as Borrower, the banks and financial institutions listed therein, as Lenders, and Norddeutsche Landesbank Girozentrale, as Swap Bank, Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee, relating to a term loan facility of up to $126,400,000, as amended and supplemented by three supplemental agreements dated October 12, 2009, September 9, 2011 and January 4, 2012 and two supplemental letters dated July 24, 2009 and February 8, 2010.
|
||
4.84
|
|
Credit Facility Agreement, dated July 18, 2008, by and between Drillship Skopelos Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, the various financial institutions listed therein, as Lenders, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 10.6 to the Post-Effective Amendment to the Registration Statement on Form F-3ASR of DryShips Inc. (File No. 333-146540), filed with the SEC on October 20, 2008.
|
|
4.85
|
|
Credit Facility Agreement, dated July 18, 2008, by and between Drillship Kithira Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, the various financial institutions listed therein, as Lenders, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 10.7 to the Post-Effective Amendment to the Registration Statement on Form F-3ASR of DryShips Inc. (File No. 333-146540), filed with the SEC on October 20, 2008.
|
|
4.86
|
|
Supplemental Agreement, dated September 17, 2008, by and between Drillship Skopelos Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, incorporated by reference to Exhibit 4.51 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.87
|
|
Supplemental Agreement, dated September 17, 2008, relating to a Credit Facility Agreement, dated July 18, 2008, by and between Drillship Kithira Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, incorporated by reference to Exhibit 4.52 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.88
|
|
Supplemental Agreement No. 2, dated December 18, 2008, by and between Drillship Skopelos Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by a Supplemental Agreement dated September 17, 2008, incorporated by reference to Exhibit 4.53 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.89
|
|
Supplemental Agreement No. 2, dated December 18, 2008, relating to a Credit Facility Agreement, dated July 18, 2008, by and between Drillship Kithira Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by a Supplemental Agreement dated September 17, 2008, incorporated by reference to Exhibit 4.54 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.90
|
|
Waiver Letter, dated May 21, 2009, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by the supplemental agreement dated September 17, 2008 and the supplemental agreement No. 2 dated December 18, 2008, by and among (among others) Drillship Skopelos Owners Inc., as Owner, the Lenders under the Credit Agreement, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 4.78 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.91
|
|
Waiver Letter, dated May 21, 2009, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by the supplemental agreement dated September 17, 2008 and the supplemental agreement No. 2 dated December 18, 2008, by and among (among others) Drillship Kithira Owners Inc., as Owner, the Lenders under the Credit Agreement, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 4.79 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.92
|
|
Facility Agent's and Security Trustee's Consent Letter, dated June 5, 2009, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by the supplemental agreement dated September 17, 2008 and the supplemental agreement No. 2 dated December 18, 2008, by and among (among others) Drillship Skopelos Owners Inc., as Owner, the Lenders under the Credit Agreement, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 4.80 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 310, 2010, filed with the SEC on April 15, 2011.
|
|
4.93
|
|
Facility Agent's and Security Trustee's Consent Letter, dated June 5, 2009, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by the supplemental agreement dated September 17, 2008 and the supplemental agreement No. 2 dated December 18, 2008, by and among (among others) Drillship Kithira Owners Inc., as Owner, the Lenders under the Credit Agreement, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 4.81 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.94
|
|
Supplemental Agreement No. 3, dated January 29, 2010, by and among Drillship Skopelos Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, relating to $562,500,000 Credit Facility Agreement as amended and supplemented by a Supplemental Agreement dated September 17, 2008 and a Supplemental Agreement No. 2 dated December 18, 2008, incorporated by reference to Exhibit 4.55 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.95
|
|
Supplemental Agreement No. 3, dated January 29, 2010, by and among Drillship Kithira Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Dexia Credit Local, New York Branch, as Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch, as Swap Banks, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, relating to $562,500,000 Credit Facility Agreement as amended and supplemented by a Supplemental Agreement dated September 17, 2008 and a Supplemental Agreement No. 2 dated December 18, 2008, incorporated by reference to Exhibit 4.56 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
|
4.96
|
|
Facility Agent's Consent Letter, dated June 23, 2010 relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by the supplemental agreement dated September 17, 2008, the supplemental agreement no. 2 dated December 18, 2008 and the supplemental agreement no. 3 dated January 29, 2010, by and between (among others) Drillship Skopelos Owners Inc., as Owner, certain Lenders referred to therein, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 4.84 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.97
|
|
Facility Agent's Consent Letter, dated June 23, 2010, relating to a $562,500,000 Credit Facility Agreement, dated July 18, 2008, as amended and supplemented by the supplemental agreement dated September 17, 2008, the supplemental agreement no. 2 dated December 18, 2008 and the supplemental agreement no. 3 dated January 29, 2010, by and between (among others) Drillship Kithira Owners Inc., as Owner, certain Lenders referred to therein, Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to Exhibit 4.85 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
|
4.98
|
|
Amendment and Restatement Agreement to the Credit Agreement, dated April 27, 2011, by and among Drillship Skopelos Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch, as Swap Bank, Deutsche Bank Luxembourg S.A., as Facility Agent for itself and on behalf of the various financial institutions as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 10.32 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
|
4.99
|
|
Amendment and Restatement Agreement to the Credit Agreement, dated April 27, 2011, by and among Drillship Kithira Owners Inc., as Owner, Deutsche Bank A.G., London Branch, as Bookrunner and Joint Mandated Lead Arranger, Deutsche Bank AG, London Branch, as Swap Bank, Deutsche Bank Luxembourg S.A., as Facility Agent for itself and on behalf of the various financial institutions as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 10.33 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
|
4.100
|
|
Amendment Agreement to the Credit Agreement, dated August 10, 2011, by and among Drillship Skopelos Owners Inc., as Owner, DryShips Inc., as Sponsor and Ocean Rig UDW Inc., as Ocean Rig guarantor, Deutshce Bank AG, London Branch, as Bookrunner and Mandated Lead Arranger, Deutsche Bank AG, London Branch, as Swap Bank, Deutsche Bank Luxembourg S.A., as Facility Agent for itself and on behalf of various financial institutions as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 10.34 to the Registration Statement on Form F-4/A of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 17, 2011.
|
|
4.101
|
|
Sponsor Construction and Post-Delivery Guarantee, dated July 18, 2008, between DryShips Inc., as Guarantor, Deutsche Bank Luxembourg S.A., as Facility Agent, various financial institutions, as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 10.34 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
|
4.102
|
|
Sponsor Construction and Post-Delivery Guarantee, dated July 18, 2008, between DryShips Inc., as Guarantor, Deutsche Bank Luxembourg S.A., as Facility Agent, various financial institutions, as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 10.35 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940) filed with the SEC on August 1, 2011.
|
|
4.103
|
Ocean Rig Guarantee, dated April 27, 2011, between Ocean Rig UDW Inc., as Guarantor, Deutsche Bank Luxembourg S.A., as Facility Agent for itself and on behalf of various financial institutions as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 10.36 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940) filed with the SEC on August 1, 2011.
|
||
4.104
|
Ocean Rig Guarantee, dated April 27, 2011, between Ocean Rig UDW Inc., as Guarantor, Deutsche Bank Luxembourg S.A., as Facility Agent for itself and on behalf of various financial institutions as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 10.37 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940) filed with the SEC on August 1, 2011.
|
||
4.105
|
Credit Facility Agreement, dated July 18, 2008, by and among Drillship Skopelos Owners Inc., as Owner, Deutsche Bank AG, London Branch, as Bookrunner and Mandated Lead Arranger, various financial institutions, as Lenders, Deutsche Bank AG, London Branch, as Swap Bank, and Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, as amended and supplemented from time to time and most recently amended and restated on May 14, 2012, incorporated by reference to exhibit 4.31 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
4.106
|
Credit Facility Agreement, dated July 18, 2008, by and among Drillship Kithira Owners Inc., as Owner, Deutsche Bank AG, London Branch, as Bookrunner and Mandated Lead Arranger, various financial institutions, as Lenders, Deutsche Bank AG, London Branch, as Swap Bank, and Deutsche Bank Luxembourg S.A., as Facility Agent, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, as amended and supplemented from time to time and most recently amended and restated on May 14, 2012, incorporated by reference to exhibit 4.32 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
4.107
|
Sponsor Guarantee, dated May 14, 2012, between DryShips Inc., as Guarantor, Deutsche Bank Luxembourg S.A., as Facility Agent for itself and on behalf of various financial institutions, as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 4.33 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
4.108
|
Sponsor Guarantee, dated May 14, 2012, between DryShips Inc., as Guarantor, Deutsche Bank Luxembourg S.A., as Facility Agent for itself and on behalf of various financial institutions, as Lenders, and Deutsche Bank AG Filiale Deutschlandgeschaft, as Security Trustee, incorporated by reference to exhibit 4.34 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
4.109
|
Deed of Release and Amendment, dated May 14, 2012, by and among Drillship Skopelos Owners Inc., as Owner, Ocean Rig Drilling Operations B.V., as Bareboat Charterer, DryShips Inc., as Sponsor, Ocean Rig UDW Inc., Drillships Investment Inc., Skopelos Shareholders Inc., Deutsche Bank AG, London Branch, as Swap Bank, Deutsche Bank Luxembourg S.A., as Facility Agent on behalf of various financial institutions as Lenders, Deutsche Bank AG Filiale Deutschlandgescharft, as Security Trustee, Deutshce Bank AG, London Branch, as Bookrunner and Mandated Lead Arranger, and Deutsche Bank AG, London Branch, as Account Bank, incorporated by reference to exhibit 4.35 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
4.110
|
Deed of Release and Amendment, dated May 14, 2012, by and among Drillship Kithira Owners Inc., as Owner, Ocean Rig Poseidon Operations Inc., as Bareboat Charterer, DryShips Inc., as Sponsor, Ocean Rig UDW Inc., Drillships Investment Inc., Kithira Shareholders Inc., Deutsche Bank AG, London Branch, as Swap Bank, Deutsche Bank Luxembourg S.A., as Facility Agent on behalf of various financial institutions as Lenders, Deutsche Bank AG Filiale Deutschlandgescharft, as Security Trustee, Deutshce Bank AG, London Branch, as Bookrunner and Mandated Lead Arranger, and Deutsche Bank AG, London Branch, as Account Bank, incorporated by reference to exhibit 4.36 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
||
4.111
|
Addendum No. 2, dated May 18, 2012, to an Amended and Restated Guarantee, Revolving Credit and Term Loan Facility Agreement, dated November 19, 2009, by and among Ocean Rig ASA, Ocean Rig Norway AS and Drill Rigs Holdings Inc., as borrowers, the guarantors listed therein, as original guarantors, the financial institutions listed therein, as banks, DNB Bank ASA, as guarantee bank, DNB Bank ASA, as mandated lead arranger and bookrunner, HSH Nordbank AG, Nordea Bank Norge ASA and Skandinaviska Enskilda Banken AB (Publ), as mandated lead arrangers, and DNB Bank ASA, as agent, for $1,040,000,000, incorporated by reference to exhibit 4.9 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
|
4.112
|
|
Loan Agreement, dated February 7, 2011, by and among Olympian Zeus Owners Inc. and Olympian Apollo Owners Inc., as joint and several Borrowers, the banks and financial institutions set forth therein, Nordea Bank Finland, plc, London Branch, as Arranger, Agent, Security Agent and Account Bank, and Nordea Bank Finland plc, as Swap Provider, relating to a term loan of up to $70,000,000, incorporated by reference to Exhibit 4.119 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.113
|
|
Senior Secured Credit Facility Agreement, dated April 15, 2011, by and among Drillships Holdings Inc., as Borrower, the banks and financial institutions named therein, as Mandated Lead Arrangers and Lenders, and Nordea Bank Finland plc, London Branch, as Agent, relating to a credit facility of $800,000,000, incorporated by reference to exhibit 10.4 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
4.114
|
Amendment Agreement, dated May 9, 2012, to the Senior Secured Credit Facility Agreement, dated April 15, 2011, by and among Drillships Holdings Inc., as Borrower, the banks and financial institutions named therein, as Mandated Lead Arrangers and Lenders, and Nordea Bank Finland plc, London Branch, as Agent, relating to a credit facility of $800,000,000, incorporated by reference to exhibit 4.8 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
|
4.115
|
|
Loan Agreement, dated October 26, 2011, by and among Olympian Ares Owners Inc., Olympian Artemis Owners Inc., Olympian Demeter Owners Inc. and Olympian Poseidon Owners Inc., as joint and several Borrowers, ABN AMRO Bank N.V. and The Export-Import Bank of Korea, as joint Arrangers, ABN AMRO Bank N.V., as Facility Agent, Security Trustee, Account Bank and Swap Provider, The Export-Import Bank of Korea, as loan provider, and the banks and financial institutions listed therein, as Commercial Lenders, relating to a loan of $141,350,000, incorporated by reference to Exhibit 4.105 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
4.116
|
|
Loan Agreement, dated February 14, 2012, for a loan of up to $122,580,000, by and among Oceanview Owners Limited, Oceansurf Owners Limited and Oceancentury Owners Limited, as joint and several Borrowers, arranged by China Development Bank Corporation, as Mandated Lead Arranger and Bank of China, as Coordinating Mandated Lead Arranger, with China Development Bank Corporation and Bank of China Limited, as Original Lenders, with China Development Bank Corporation, as Facility Agent, and China Development Bank Corporation, as Security Agent, incorporated by reference to Exhibit 4.106 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
4.117
|
|
Commitment Letter, dated February 13, 2012, by and between the Company and HSH Nordbank AG relating to a term loan facility of up to $87,653,740, incorporated by reference to Exhibit 4.107 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
4.118
|
Loan Agreement, dated March 19, 2012, by and among Amathus Owning Company Limited, Symi Owners Inc. and Kalymnos Owners Inc., as joint and several Borrowers, and the banks and financial institutions listed therein, as Lenders, and HSH Nordbank AG, as Agent, Mandated Lead Arranger, Swap Bank and Security Trustee, relating to a loan facility of up to $87,653,740.
|
4.119
|
|
Amended and Restated Loan Agreement, dated February 12, 2008, by and among OceanFreight Inc., as Borrower, the subsidiaries of OceanFreight Inc. listed therein, as Joint and Several Guarantors, the banks and financial institutions listed therein, as Lenders, Nordea Bank Norge ASA, acting through its Grand Cayman branch, as Lead Arranger and Bookrunner, Nordea Bank Finland plc, acting through its New York branch, as Administrative Agent and Security Trustee, Bank of Scotland plc, Piraeus Bank A.E. and Skandinaviska Enskilda Banken AB, as Co-Arrangers, and Nordea Bank Finland plc, acting through its New York branch, as Swap Bank, relating to a $325,000,000 senior secured credit facility and a $125,000,000 secured term loan facility, incorporated by reference to Exhibit 4.5 to the Annual Report on Form 20-F of OceanFreight Inc. for the fiscal year ended December 31, 2007, filed with the SEC on March 7, 2008.
|
4.120
|
|
First Amendatory Agreement to an Amended and Restated Loan Agreement, dated February 12, 2008, by and among OceanFreight Inc., as Borrower, the subsidiaries of OceanFreight Inc. listed therein, as Joint and Several Guarantors, the banks and financial institutions listed therein, as Lenders, Nordea Bank Norge ASA, acting through its Grand Cayman branch, as Lead Arranger and Bookrunner, Nordea Bank Finland plc, acting through its New York branch, as Administrative Agent and Security Trustee, Bank of Scotland plc, Piraeus Bank A.E. and Skandinaviska Enskilda Banken AB, as Co-Arrangers, and Nordea Bank Finland plc, acting through its New York branch, as Swap Bank, relating to a $325,000,000 senior secured credit facility and a $125,000,000 secured term loan facility, incorporated by reference to Exhibit 4.9 of the Report on Form 6-K of OceanFreight Inc., filed with the SEC on February 2, 2009.
|
4.121
|
|
Second Amendatory Agreement, dated August 8, 2011, amending and supplementing the Amended and Restated Loan Agreement, dated February 12, 2008, by and among OceanFreight Inc., as Borrower, the subsidiaries of OceanFreight Inc. listed therein, as Joint and Several Guarantors, the banks and financial institutions listed therein, as Lenders, Nordea Bank Norge ASA, acting through its Grand Cayman branch, as Lead Arranger and Bookrunner, Nordea Bank Finland plc, acting through its New York branch, as Administrative Agent and Security Trustee, Bank of Scotland plc, Piraeus Bank A.E. and Skandinaviska Enskilda Banken AB, as Co-Arrangers, and Nordea Bank Finland plc, acting through its New York branch, as Swap Bank, as amended by a First Amendatory Agreement dated January 9, 2009, incorporated by reference to Exhibit 4.110 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
4.122
|
|
Guarantee, dated August 23, 2011, by DryShips Inc., as Guarantor, in favor of Nordea Bank Finland PLC, New York Branch, as Security Trustee, incorporated by reference to Exhibit 4.111 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
4.123
|
|
Loan Agreement, dated April 20, 2011, by and between Olympian Hera Owners Inc., as Borrower, the banks and financial institutions set out therein, as Banks, and DVB Bank SE, as Arranger, Agent and Security Agent, relating to a term loan of up to $32,312,500, incorporated by reference to Exhibit 4.112 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
4.124
|
Supplemental Agreement, dated July 31, 2012, to a Loan Agreement, dated April 20, 2011, by and between Olympian Hera Owners Inc., as Borrower, the banks and financial institutions set out therein, as Banks, and DVB Bank SE, as Arranger, Agent and Security Agent, relating to a term loan of up to $32,312,500.
|
|
4.125
|
Loan Agreement, dated October 24, 2012, by and among Olympian Athena Owners Inc., Olympian Aphrodite Owners Inc. and Olympian Dionysus Owners Inc., as joint and several borrowers, ABN AMRO Bank N.V. and The Korea Development Bank, as joint mandated Arrangers, ABN AMRO Bank N.V., as Facility Agent, Security Trustee, Account Bank, Swap Provider and K-sure Agent, and the banks and financial institutions listed therein, as Lenders, relating to a $107,668,750 loan.
|
|
4.126
|
|
Share Lending Agreement, dated November 19, 2009, between DryShips Inc. and Deutsche Bank AG, London Branch, incorporated by reference to Exhibit 4 to the Report on Form 6-K of DryShips Inc., filed with the SEC on November 25, 2009.
|
4.127
|
|
Share Lending Agreement, dated April 21, 2010, by and between DryShips Inc. and Deutsche Bank AG, London Branch, incorporated by reference to Exhibit 3 to the Report on Form 6-K of DryShips Inc., filed with the SEC on April 27, 2010.
|
4.128
|
|
Form of Vessel Management Agreement, dated January 1, 2011 with TMS Bulkers Ltd., incorporated by reference to Exhibit 4.112 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.129
|
|
Form of Vessel Management Agreement, dated December 28, 2010 with TMS Tankers Ltd., incorporated by reference to Exhibit 4.113 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.130
|
|
Consultancy Agreement, dated September 1, 2010, by and between DryShips Inc. and Vivid Finance Inc., incorporated by reference Exhibit 2 to the Report on Form 6-K of DryShips Inc., filed with the SEC on September 7, 2010, incorporated by reference to Exhibit 4.114 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011
|
4.131
|
Addendum No. 1, dated January 1, 2013, to the Consultancy Agreement, dated September 1, 2010, by and between the Company and Vivid Finance Inc., incorporated by reference to exhibit 4.41 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
|
4.132
|
|
Global Services Agreement, dated December 1, 2010, by and between DryShips Inc. and Cardiff Marine Inc., incorporated by reference to Exhibit, incorporated by reference to Exhibit 4.115 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.133
|
Termination Agreement, dated January 1, 2013, by and between DryShips Inc. and Cardiff Marine Inc., relating to the Global Services Agreement, dated December 1, 2010, by and between DryShips Inc. and Cardiff Marine Inc., incorporated by reference to exhibit 4.38 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
|
4.134
|
|
Drillship Master Agreement, dated November 22, 2010, by and between DryShips Inc. and Samsung Heavy Industries Co., Ltd., incorporated by reference to Exhibit 4.116 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011
|
4.135
|
|
Novation Agreement, dated December 30, 2010, by and between DryShips Inc., Ocean Rig UDW Inc. and Samsung Heavy Industries Co., Ltd., incorporated by reference to Exhibit 4.117 to the Company's Annual Report on Form 20-F for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011
|
4.136
|
|
Addendum No. 1, dated May 16, 2011, to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and Samsung Heavy Industries Co., Ltd., as novated by a Novation Agreement, dated December 30, 2010, between Samsung Heavy Industries Co., Ltd., DryShips Inc. and Ocean Rig UDW Inc., incorporated by reference to Exhibit 10.3 of the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011
|
4.137
|
|
Addendum No. 2, dated January 27, 2012, to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and Samsung Heavy Industries Co., Ltd., as novated by a Novation Agreement, dated December 30, 2010 and as amended by Addendum No. 1 dated May 16, 2011, incorporated by reference to Exhibit 4.3 of the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 13, 2012
|
4.138
|
Addendum No. 3 dated April 2, 2012, to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and Samsung Heavy Industries Co., Ltd., as novated by a Novation Agreement, dated December 30, 2010 and as amended, incorporated by reference to exhibit 4.5 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
|
4.139
|
Addendum No. 4, dated September 3, 2012, to a Drillship Master Agreement, dated November 22, 2010, between DryShips Inc. and Samsung Heavy Industries Co., Ltd., as novated by a Novation Agreement, dated December 30, 2010 and as amended, incorporated by reference to exhibit 4.6 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
|
4.140
|
|
Agreement and Plan of Merger, dated July 26, 2011, by and among DryShips Inc., Pelican Stockholdings Inc. and OceanFreight Inc., incorporated by reference to Exhibit 99.1 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (File No. 333-176641), filed with the SEC on September 1, 2011.
|
4.141
|
|
Purchase and Sale Agreement, dated July 26, 2011, by and among DryShips Inc., OceanFreight Inc., Basset Holdings Inc., Steel Wheel Investments Limited and Haywood Finance Limited, incorporated by reference to Exhibit 99.2 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (File No. 333-176641), filed with the SEC on September 1, 2011.
|
4.142
|
|
Form of Vessel Management Agreement, dated June 15, 2010 with TMS Dry Ltd., incorporated by reference to Exhibit 4.6 to the Annual Report on Form 20-F of OceanFreight Inc., filed with the SEC on April 14, 2011
|
4.143
|
|
Form of Novation Agreement, dated December 30, 2011, between DryShips Inc., TMS Dry Ltd. and TMS Bulkers Ltd., incorporated by reference to exhibit 4.130 to the Annual Report on Form 20-F of DryShips Inc. filed with the SEC on March 16, 2012.
|
4.144
|
Registration Rights Agreement, dated as of March 20, 2012, by and between DryShips Inc. and Ocean Rig UDW Inc., incorporated by reference to exhibit 4.4 to the Registration Statement on Form F-1 of Ocean Rig UDW Inc. (Registration No. 333-180241), filed with the SEC on March 20, 2012.
|
|
4.145
|
Facilities Agreement, dated February 28, 2013, by and among Drillships Ocean Ventures Inc., as Borrower, and Ocean Rig UDW Inc., as Parent and Guarantor, and the companies listed therein, as Guarantors, and the banks and financial institutions named therein, as Mandated Lead Arrangers, with the banks and financial institutions named therein, as Lenders under the Commercial Facilities, Eksportkreditt Norge AS, as Lender under the Eksportkreditt/GEIK Facilities, The Export-Import Bank of Korea, as Lender under the Kexim Facilities, and DNB Bank ASA, as Facility Agent and Security Agent, relating to $1,350,000,000 of Term Loan Facilities, incorporated by reference to exhibit 4.44 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
|
8.1
|
|
Subsidiaries of DryShips Inc.
|
12.1
|
|
Rule 13a-14(a)/15d-14(a) Certification of Principal Executive Officer
|
12.2
|
|
Rule 13a-14(a)/15d-14(a) Certification of Principal Financial Officer
|
13.1
|
|
Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
13.2
|
|
Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
15.1
|
|
Consent of Independent Registered Public Accounting Firm (Ernst & Young (Hellas) Certified Auditors Accountants S.A.)
|
101
|
|
The following materials from the Company's Annual Report on Form 20-F for the fiscal year ended December 31, 2012, formatted in eXtensible Business Reporting Language (XBRL): (i) Consolidated Balance Sheets as of December 31, 2011 and 2012; (ii) Consolidated Statements of Operations for the years ended December 31, 2010, 2011 and 2012; (iii) Consolidated Statements of Comprehensive Income for the years ended December 31, 2010, 2011 and 2012; (iv) Consolidated Statements of Stockholders' Equity for the years ended December 31, 2010, 2011 and 2012; (v) Consolidated Statements of Cash Flows for the years ended December 31, 2010, 2011 and 2012; and (v) the Notes to Consolidated Financial Statements
|
|
|
|
|
DRYSHIPS INC.
|
|
|
(Registrant)
|
||
Date: March 22, 2013
|
|
By:
|
|
/s/ Ziad Nakhleh
|
|
|
Ziad Nakhleh
|
||
|
|
Chief Financial Officer
|
|
Page
|
Report of Independent Registered Public Accounting Firm Ernst & Young (Hellas) Certified Auditors Accountants S.A.
|
F-2
|
Report of Independent Registered Public Accounting Firm on Internal Control Over Financial Reporting Ernst & Young (Hellas) Certified Auditors Accountants S.A.
|
F-3
|
Consolidated Balance Sheets as of December 31, 2011 and 2012
|
F-4
|
Consolidated Statements of Operations for the years ended December 31, 2010, 2011 and 2012
|
F-5
|
Consolidated Statements of Comprehensive Income/(loss) for the years ended December 31, 2010, 2011 and 2012
|
F-6
|
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2010, 2011 and 2012
|
F-7
|
Consolidated Statements of Cash Flows for the years ended December 31, 2010, 2011 and 2012
|
F-9
|
Notes to Consolidated Financial Statements
|
F-11
|
December 31,
|
||||||||
|
2011
|
2012
|
||||||
ASSETS
|
||||||||
CURRENT ASSETS:
|
||||||||
Cash and cash equivalents
|
$ | 251,143 | $ | 341,950 | ||||
Restricted cash (Note 2)
|
72,765 | 223,133 | ||||||
Trade accounts receivable, net of allowance for doubtful receivables of $18,420 and $14,685
|
139,971 | 174,985 | ||||||
Due from related parties (Note 4)
|
26,146 | 40,686 | ||||||
Other current assets (Note 5)
|
80,052 | 122,775 | ||||||
|
||||||||
Total current assets
|
570,077 | 903,529 | ||||||
|
||||||||
FIXED ASSETS, NET:
|
||||||||
Advances for vessels and drillships under construction and acquisitions (Note 6)
|
1,027,889 | 1,201,807 | ||||||
Vessels, net (Note 7)
|
1,956,270 | 2,059,570 | ||||||
Drilling rigs, drillships, machinery and equipment, net (Note 7)
|
4,587,916 | 4,446,730 | ||||||
|
||||||||
Total fixed assets, net
|
7,572,075 | 7,708,107 | ||||||
|
||||||||
OTHER NON-CURRENT ASSETS:
|
||||||||
Financial instruments (Note 12)
|
- | 996 | ||||||
Restricted cash (Note 2)
|
332,801 | 155,375 | ||||||
Intangible assets, net (Note 9)
|
9,062 | 7,619 | ||||||
Above-market acquired time charter and drilling contracts (Note 9)
|
40,102 | 19,575 | ||||||
Other non-current assets (Note 10)
|
97,572 | 83,290 | ||||||
|
||||||||
Total other non-current assets
|
479,537 | 266,855 | ||||||
|
||||||||
Total assets
|
$ | 8,621,689 | $ | 8,878,491 | ||||
|
||||||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
CURRENT LIABILITIES:
|
||||||||
Current portion of long-term debt (Note 11)
|
$ | 429,149 | $ | 1,102,085 | ||||
Accounts payable and other current liabilities
|
58,774 | 130,728 | ||||||
Accrued liabilities
|
119,838 | 177,114 | ||||||
Due to related parties (Note 4)
|
7,518 | 4,750 | ||||||
Deferred revenue
|
40,880 | 73,008 | ||||||
Financial instruments (Note 12)
|
100,104 | 85,844 | ||||||
|
||||||||
Total current liabilities
|
756,263 | 1,573,529 | ||||||
|
||||||||
NON-CURRENT LIABILITIES
|
||||||||
Long-term debt, net of current portion (Note 11)
|
3,812,686 | 3,284,630 | ||||||
Financial instruments (Note 12)
|
102,346 | 63,096 | ||||||
Deferred revenue
|
9,172 | 71,815 | ||||||
Pension liability (Note 15)
|
2,546 | 4,057 | ||||||
Other non-current liabilities
|
14 | 13,345 | ||||||
|
||||||||
Total non-current liabilities
|
3,926,764 | 3,436,943 | ||||||
|
||||||||
COMMITMENTS AND CONTINGENCIES (Note 16)
|
- | - | ||||||
STOCKHOLDERS' EQUITY:
|
||||||||
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2011 and 2012; 100,000,000 shares designated as Series A Convertible preferred stock; 0 shares of Series A Convertible Preferred stock issued and outstanding at December 31, 2011 and 2012, respectively (Note 13)
|
- | - | ||||||
Common stock, $0.01 par value; 1,000,000,000 shares authorized at December 31, 2011 and 2012; 424,762,094 and 424,762,244 shares issued and outstanding at December 31, 2011 and 2012, respectively (Note 13)
|
4,247 | 4,247 | ||||||
Treasury stock; $0.01 par value; 1,000,000 and 11,000,000 shares at December 31, 2011 and 2012, respectively (Note 11)
|
(10 | ) | (110 | ) | ||||
Additional paid-in capital (Note 13)
|
2,908,950 | 2,837,525 | ||||||
Accumulated other comprehensive loss (Note 17)
|
(28,610 | ) | (9,175 | ) | ||||
Retained earnings
|
260,751 | 13,973 | ||||||
|
||||||||
Total Dryships Inc. stockholders' equity
|
3,145,328 | 2,846,460 | ||||||
Non-controlling interests
|
793,334 | 1,021,559 | ||||||
|
||||||||
Total equity
|
3,938,662 | 3,868,019 | ||||||
|
||||||||
Total liabilities and stockholders' equity
|
$ | 8,621,689 | $ | 8,878,491 |
Year ended December 31,
|
||||||||||||
|
2010
|
2011
|
2012
|
|||||||||
REVENUES:
|
||||||||||||
Voyage revenues (including amortization of above market acquired time charters)
|
457,804 | 378,013 | 268,236 | |||||||||
Leasing revenues
|
141,211 | 112,118 | - | |||||||||
Service revenues (including amortization of above market acquired drilling contracts), net
|
260,730 | 587,531 | 941,903 | |||||||||
|
||||||||||||
Total Revenues (Note 2 and 19)
|
$ | 859,745 | $ | 1,077,662 | $ | 1,210,139 | ||||||
|
||||||||||||
OPERATING EXPENSES/(INCOME):
|
||||||||||||
Voyage expenses (Note 2)
|
27,433 | 20,573 | 30,012 | |||||||||
Vessels, drilling rigs and drillships operating expenses
|
190,614 | 373,122 | 649,722 | |||||||||
Depreciation and amortization (Note 7 and 9)
|
192,891 | 274,281 | 335,458 | |||||||||
Loss/(gain) on sale of assets, net
|
(9,435 | ) | 3,357 | 1,179 | ||||||||
Gain on contract cancellation (Note 7)
|
- | (6,202 | ) | - | ||||||||
Contract termination fees and forfeiture of vessels under construction deposits (Note 6)
|
- | - | 41,339 | |||||||||
Vessel impairment charge (Note 7 and 12)
|
3,588 | 144,688 | - | |||||||||
Gain from vessel insurance proceeds (Note 7)
|
- | (25,064 | ) | - | ||||||||
General and administrative expenses
|
88,576 | 123,247 | 145,935 | |||||||||
Legal settlements and other, net (Note 16.1)
|
- | - | (9,360 | ) | ||||||||
|
||||||||||||
Operating income
|
366,078 | 169,660 | 15,854 | |||||||||
|
||||||||||||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs (Note 18)
|
(66,825 | ) | (146,173 | ) | (210,128 | ) | ||||||
Interest income
|
21,866 | 16,575 | 4,203 | |||||||||
Loss on interest rate swaps (Note 12)
|
(120,505 | ) | (68,943 | ) | (54,073 | ) | ||||||
Other, net (Note 12)
|
10,272 | 9,023 | (492 | ) | ||||||||
|
||||||||||||
Total expenses, net
|
(155,192 | ) | (189,518 | ) | (260,490 | ) | ||||||
|
||||||||||||
INCOME /(LOSS) BEFORE INCOME TAXES
|
210,886 | (19,858 | ) | (244,636 | ) | |||||||
Less: Income taxes (Note 21)
|
(20,436 | ) | (27,428 | ) | (43,957 | ) | ||||||
|
||||||||||||
NET INCOME/(LOSS)
|
190,450 | (47,286 | ) | (288,593 | ) | |||||||
Less: Net (income)/loss attributable to non-controlling interests
|
(2,123 | ) | (22,842 | ) | 41,815 | |||||||
|
||||||||||||
NET INCOME/(LOSS) ATTRIBUTABLE TO DRYSHIPS INC.
|
$ | 188,327 | $ | (70,128 | ) | $ | (246,778 | ) | ||||
|
||||||||||||
NET INCOME/(LOSS) ATTRIBUTABLE TO COMMON STOCKHOLDERS (Note 13)
|
$ | 172,564 | $ | (74,594 | ) | $ | (246,778 | ) | ||||
|
||||||||||||
EARNINGS/(LOSS) PER COMMON SHARE ATTRIBUTABLE TO DRYSHIPS INC. COMMON STOCKHOLDERS, BASIC (Note 20)
|
$ | 0.64 | $ | (0.21 | ) | $ | (0.65 | ) | ||||
WEIGHTED AVERAGE NUMBER OF COMMON SHARES, BASIC (Note 20)
|
268,858,688 | 355,144,764 | 380,159,088 | |||||||||
|
||||||||||||
EARNINGS/(LOSS) PER COMMON SHARE ATTRIBUTABLE TO DRYSHIPS INC. COMMON STOCKHOLDERS, DILUTED (Note 20)
|
$ | 0.61 | $ | (0.21 | ) | $ | (0.65 | ) | ||||
WEIGHTED AVERAGE NUMBER OF COMMON SHARES, DILUTED (Note 20)
|
305,425,852 | 355,144,764 | 380,159,088 |
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
- Net income/(loss)
|
$ | 190,450 | $ | (47,286 | ) | $ | (288,593 | ) | ||||
Other comprehensive income/ (loss):
|
||||||||||||
- Unrealized gain/(loss) on cash flows hedges
|
(5,495 | ) | - | - | ||||||||
- Realized gain/(loss) on cash flows hedges associated with capitalized interest
|
(11,539 | ) | - | - | ||||||||
- Unrealized gain/(loss) on senior unsecured notes
|
- | (1,350 | ) | 2,059 | ||||||||
- Reclassification of gain associated with senior unsecured notes to Consolidated Statement of Operations, net
|
- | - | (709 | ) | ||||||||
- Reclassification of losses on previously designated cash flow hedges to Consolidated Statement of Operations, net
|
- | 13,088 | 22,904 | |||||||||
- Reclassification of realized losses associated with capitalized interest to Consolidated Statement of Operations, net
|
- | 368 | 549 | |||||||||
- Actuarial gains/(losses)
|
425 | (942 | ) | (637 | ) | |||||||
|
||||||||||||
Other comprehensive income/(loss)
|
$ | (16,609 | ) | $ | 11,164 | $ | 24,166 | |||||
|
||||||||||||
Comprehensive income/(loss)
|
173,841 | (36,122 | ) | (264,427 | ) | |||||||
- Less: comprehensive (income)/loss attributable to non-controlling interests
|
(2,309 | ) | (23,862 | ) | 34,215 | |||||||
|
||||||||||||
Comprehensive income/(loss) attributable to Dryships Inc.
|
$ | 171,532 | $ | (59,984 | ) | $ | (230,212 | ) |
|
Series A
Convertible
Preferred Stock
|
Common Stock
|
Treasury
Stock
|
|
|
|||||||||||||||||||||||||||||||||||||||||||
Shares
|
Par
Value
|
Shares
|
Par
Value
|
Shares
|
Par
Value
|
Additional
Paid-in
Capital
|
Accumulated
Other
Comprehensive
Loss
|
Retained
Earnings
|
Total
Dryships
Inc.
Stockholders
Equity
|
Non-controlling
interests
|
Total
Equity
|
|||||||||||||||||||||||||||||||||||||
BALANCE, December 31, 2009
|
$ | 52,238,806 | $ | 522 | 280,326,271 | $ | 2,803 | — | — | $ | 2,681,974 | $ | (33,399 | ) | $ | 160,642 | $ | 2,812,542 | $ | — | $ | 2,812,542 | ||||||||||||||||||||||||||
- Net income
|
— | — | — | — | — | 188,327 | 188,327 | 2,123 | 190,450 | |||||||||||||||||||||||||||||||||||||||
- Issuance of common stock
|
— | — | 84,818,706 | 848 | — | — | 341,026 | — | — | 341,874 | — | 341,874 | ||||||||||||||||||||||||||||||||||||
- Issuance of non-vested shares
|
— | — | 4,504,800 | 45 | — | — | (45 | ) | — | — | — | — | — | |||||||||||||||||||||||||||||||||||
- Equity component of convertible notes and other
|
— | — | — | — | — | — | 74,500 | — | — | 74,500 | — | 74,500 | ||||||||||||||||||||||||||||||||||||
- Acquisition of subsidiary shares from non-controlling interest
|
— | — | — | — | — | — | (16,038 | ) | 309 | — | (15,729 | ) | — | (15,729 | ) | |||||||||||||||||||||||||||||||||
- Issuance of subsidiary shares to non-controlling interest
|
— | — | — | — | — | — | (164,223 | ) | 11,131 | — | (153,092 | ) | 641,393 | 488,301 | ||||||||||||||||||||||||||||||||||
- Other comprehensive loss
|
— | — | — | — | — | — | — | (16,795 | ) | — | (16,795 | ) | 186 | (16,609 | ) | |||||||||||||||||||||||||||||||||
- Amortization of stock based compensation
|
— | — | — | — | — | — | 24,200 | — | — | 24,200 | — | 24,200 | ||||||||||||||||||||||||||||||||||||
- Dividends on preferred stock
|
— | — | — | — | — | — | 13,624 | — | (13,624 | ) | — | — | — | |||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||||||||||
BALANCE, December 31, 2010
|
52,238,806 | $ | 522 | 369,649,777 | $ | 3,696 | — | $ | — | $ | 2,955,018 | $ | (38,754 | ) | $ | 335,345 | $ | 3,255,827 | $ | 643,702 | $ | 3,899,529 | ||||||||||||||||||||||||||
- Net income/(loss)
|
— | — | — | — | — | — | — | — | (70,128 | ) | (70,128 | ) | 22,842 | (47,286 | ) | |||||||||||||||||||||||||||||||||
- Issuance of non-vested shares
|
— | — | 9,016,800 | 90 | — | — | (90 | ) | — | — | — | — | — | |||||||||||||||||||||||||||||||||||
- Issuance of preferred stock
|
6,532,979 | 65 | — | — | — | — | (65 | ) | — | — | — | — | — | |||||||||||||||||||||||||||||||||||
- Conversion of preferred stock into common stock
|
(58,771,785 | ) | (587 | ) | 46,095,517 | 461 | — | — | 126 | — | — | — | — | — | ||||||||||||||||||||||||||||||||||
- Issuance of treasury stock
|
— | — | — | — | (1,000,000 | ) | (10 | ) | 10 | — | — | — | — | — | ||||||||||||||||||||||||||||||||||
- Issuance of subsidiary shares to non-controlling interest
|
— | — | — | — | — | — | (77,083 | ) | 1,852 | — | (75,231 | ) | 123,918 | 48,687 | ||||||||||||||||||||||||||||||||||
- Other comprehensive income
|
— | — | — | — | — | — | — | 8,292 | — | 8,292 | 2,872 | 11,164 | ||||||||||||||||||||||||||||||||||||
- Amortization of stock based compensation
|
— | — | — | — | — | — | 26,568 | — | — | 26,568 | — | 26,568 | ||||||||||||||||||||||||||||||||||||
- Dividends on preferred stock
|
— | — | — | — | — | — | 4,466 | — | (4,466 | ) | — | — | — |
|
Series A
Convertible
Preferred Stock
|
Common Stock
|
Treasury
Stock
|
|
|
|
|
|||||||||||||||||||||||||||||||||||||||||
|
Shares
|
Par
Value
|
Shares
|
Par
Value
|
Shares
|
Par Value
|
Additional
Paid-in
Capital
|
Accumulated
Other
Comprehensive
Loss
|
Retained
Earnings
|
Total
Dryships
Inc.
Stockholders
Equity
|
Non
controlling
interests
|
Total
equity
|
||||||||||||||||||||||||||||||||||||
BALANCE December 31, 2011
|
- | - | 424,762,094 | $ | 4,247 | (1,000,000 | ) | $ | (10 | ) | $ | 2,908,950 | $ | (28,610 | ) | $ | 260,751 | $ | 3,145,328 | $ | 793,334 | $ | 3,938,662 | |||||||||||||||||||||||||
- Net loss
|
- | - | - | - | - | - | - | - | (246,778 | ) | (246,778 | ) | (41,815 | ) | (288,593 | ) | ||||||||||||||||||||||||||||||||
- Issuance of non-vested shares
|
- | - | 150 | - | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||||||||||||
- Issuance of treasury stock
|
- | - | - | - | (10,000,000 | ) | (100 | ) | 100 | - | - | - | - | - | ||||||||||||||||||||||||||||||||||
- Issuance of subsidiary shares to non-controlling interest
|
- | - | - | - | - | - | (84,629 | ) | 2,869 | - | (81,760 | ) | 262,245 | 180,485 | ||||||||||||||||||||||||||||||||||
- Other comprehensive income
|
- | - | - | - | - | - | - | 16,566 | - | 16,566 | 7,600 | 24,166 | ||||||||||||||||||||||||||||||||||||
- Amortization of stock based compensation
|
- | - | - | - | - | - | 13,104 | - | - | 13,104 | 195 | 13,299 | ||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||||||||||
BALANCE December 31, 2012
|
— | — | 424,762,244 | $ | 4,247 | (11,000,000 | ) | $ | (110 | ) | $ | 2,837,525 | $ | (9,175 | ) | $ | 13,973 | $ | 2,846,460 | $ | 1,021,559 | $ | 3,868,019 |
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Cash Flows from Operating Activities:
|
|
|
|
|||||||||
Net income / (loss)
|
$ | 190,450 | $ | (47,286 | ) | $ | (288,593 | ) | ||||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||||||||||
Depreciation and amortization
|
192,891 | 274,281 | 335,458 | |||||||||
Commitments fees on undrawn line of credit
|
6,376 | - | - | |||||||||
Amortization, write off of deferred financing fees
|
10,866 | 24,926 | 20,548 | |||||||||
Amortization of convertible senior notes debt discount
|
26,516 | 34,144 | 38,855 | |||||||||
Amortization of fair value of acquired time charters and drilling contracts
|
(5,557 | ) | 7,534 | 20,527 | ||||||||
Amortization of cash flow hedge reserve
|
(11,539 | ) | 13,088 | 22,904 | ||||||||
Vessel impairment charge
|
3,588 | 144,688 | - | |||||||||
Loss/(gain) on sale of assets, net
|
(9,435 | ) | 3,357 | 1,179 | ||||||||
Gain on contract cancellation
|
- | (6,202 | ) | - | ||||||||
Gain on vessel insurance proceeds
|
- | (25,064 | ) | - | ||||||||
Gain on sale of notes
|
- | (1,406 | ) | (709 | ) | |||||||
Forfeiture of advances for vessel acquisitions
|
- | - | 19,939 | |||||||||
Amortization of stock based compensation
|
24,200 | 26,568 | 13,299 | |||||||||
Interest income on restricted cash
|
(6,205 | ) | (4,318 | ) | - | |||||||
Change in fair value of derivatives
|
48,439 | (38,155 | ) | (54,506 | ) | |||||||
Security deposits for derivatives
|
(37,900 | ) | 45,500 | 24,550 | ||||||||
Amortization of free lubricants benefit
|
(24 | ) | (15 | ) | (14 | ) | ||||||
Changes in operating assets and liabilities:
|
||||||||||||
Trade accounts receivable
|
41,477 | (114,420 | ) | (33,469 | ) | |||||||
Due from related parties
|
6,610 | (5,211 | ) | (14,540 | ) | |||||||
Other current and non-current assets
|
(6,208 | ) | (52,013 | ) | (58,277 | ) | ||||||
Accounts payable and other current and non-current liabilities
|
(10,336 | ) | 29,567 | 40,224 | ||||||||
Pension liability
|
1,415 | 1,002 | 874 | |||||||||
Accrued liabilities
|
14,133 | 45,561 | 57,277 | |||||||||
Due to related parties
|
- | (5,805 | ) | (2,768 | ) | |||||||
Deferred revenue
|
(2,956 | ) | (1,116 | ) | 94,771 | |||||||
|
||||||||||||
Net Cash Provided by Operating Activities
|
476,801 | 349,205 | 237,529 | |||||||||
|
||||||||||||
Cash Flows from Investing Activities:
|
||||||||||||
Vessel insurance proceeds
|
- | 58,200 | - | |||||||||
Business acquisitions, net of cash acquired
|
- | (58,743 | ) | - | ||||||||
Purchase of notes
|
- | (75,000 | ) | - | ||||||||
Sale of notes
|
- | 58,406 | 18,709 | |||||||||
Advances for vessel acquisitions / rigs and drillships under construction
|
(890,098 | ) | (2,221,427 | ) | (276,956 | ) | ||||||
Delivery payment for rig/drillships under construction
|
(294,569 | ) | - | - | ||||||||
Option for future construction of rigs/drillships
|
(99,024 | ) | - | - | ||||||||
Vessel acquisitions and improvements
|
(43,448 | ) | - | (177,724 | ) | |||||||
Drilling rigs, drillships equipment and other improvements
|
(10,136 | ) | (78,480 | ) | (97,868 | ) | ||||||
Proceeds from sale of vessels and contract cancellation
|
73,317 | 119,059 | 116,834 | |||||||||
Increase in restricted cash
|
(416,790 | ) | - | - | ||||||||
Decrease in restricted cash
|
- | 375,591 | 27,058 | |||||||||
|
||||||||||||
Net Cash Used in Investing Activities
|
(1,680,748 | ) | (1,822,394 | ) | (389,947 | ) |
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Cash Flows from Financing Activities:
|
||||||||||||
Proceeds from issuance of convertible notes
|
237,202 | - | - | |||||||||
Proceeds from long-term credit facilities, term loans and senior notes
|
8,250 | 2,555,102 | 966,103 | |||||||||
Proceeds from short-term credit facility
|
300,000 | - | - | |||||||||
Payments of short-term credit facility
|
(247,717 | ) | (300,000 | ) | - | |||||||
Principal payments and repayments of long-term debt
|
(217,726 | ) | (877,793 | ) | (867,932 | ) | ||||||
Net proceeds from common stock issuance
|
341,774 | - | - | |||||||||
Net proceeds from sale in ownerships of subsidiary
|
488,301 | - | 180,485 | |||||||||
Proceeds from share-lending arrangement
|
100 | - | - | |||||||||
Payment of financing costs, net
|
(7,876 | ) | (44,507 | ) | (35,431 | ) | ||||||
|
||||||||||||
Net Cash Provided by Financing Activities
|
902,308 | 1,332,802 | 243,225 | |||||||||
|
||||||||||||
Net increase/ (decrease) in cash and cash equivalents
|
(301,639 | ) | (140,387 | ) | 90,807 | |||||||
Cash and cash equivalents at beginning of year
|
693,169 | 391,530 | 251,143 | |||||||||
|
||||||||||||
Cash and cash equivalents at end of year
|
$ | 391,530 | $ | 251,143 | $ | 341,950 | ||||||
SUPPLEMENTAL CASH FLOW INFORMATION:
|
||||||||||||
Cash paid during the year for:
|
||||||||||||
Interest, net of amount capitalized
|
$ | 58,851 | $ | 34,117 | $ | 118,606 | ||||||
Income taxes
|
19,803 | 23,199 | 45,450 | |||||||||
Non cash financing and investing activities:
|
||||||||||||
Issuance of non-vested shares
|
45 | 90 | - | |||||||||
Difference between the consideration received and the equity attributed to non-controlling interest
|
153,092 | - | - | |||||||||
Fair value of preferred share dividend
|
$ | 13,624 | $ | 4,466 | $ | - |
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Customer A - Drilling rig segment
|
26 | % | 21 | % | - | |||||||
Customer B - Drilling rig segment
|
20 | % | 12 | % | 38 | % | ||||||
Customer C - Drilling rig segment
|
- | - | 14 | % | ||||||||
Customer D - Drilling rig segment
|
- | 24 | % | - |
Intangible assets/liabilities
|
Years
|
Tradenames
|
10
|
Software
|
10
|
Fair value of above market acquired time charters/ drilling contracts
|
Over remaining contract term
|
Fair value of below market acquired time charters/ drilling contracts
|
Over remaining contract term
|
|
(i)
|
Drybulk carrier and tanker vessels:
|
|
(ii)
|
Drilling rigs and drillships:
|
|
(i)
|
Hedge accounting: At the inception of a hedge relationship, the Company formally designates and documents the hedge relationship to which the Company wishes to apply hedge accounting and the risk management objective and strategy undertaken for the hedge. The documentation includes identification of the hedging instrument, hedged item or transaction, the nature of the risk being hedged and how the entity will assess the hedging instrument's effectiveness in offsetting exposure to changes in the hedged item's cash flows attributable to the hedged risk. Such hedges are expected to be highly effective in achieving offsetting changes in cash flows and are assessed on an ongoing basis to determine whether they actually have been highly effective throughout the financial reporting periods for which they were designated.
|
|
(ii)
|
Other derivatives: Changes in the fair value of derivative instruments that have not been designated as hedging instruments are reported in current period earnings.
|
|
December 31,
2011
|
December 31,
2012
|
||||||
Balance Sheet
|
||||||||
Due to related party – Cardiff Marine Inc.
|
$ | (671 | ) | (2,080 | ) | |||
Due to related party - Tri-Ocean Heidmar
|
(43 | ) | (43 | ) | ||||
Due to related party - TMS Dry
|
(6,804 | ) | - | |||||
Due to related party – Cardiff Tankers
|
- | (2 | ) | |||||
Due to related party – Fabiana
|
- | (918 | ) | |||||
Due to related party - Vivid
|
- | (1,707 | ) | |||||
|
||||||||
Due to related party - Total
|
(7,518 | ) | (4,750 | ) | ||||
|
||||||||
Due from related party - TMS Bulkers
|
19,579 | 30,473 | ||||||
Due from related party - TMS Tankers
|
6,324 | 9,270 | ||||||
Due from related party - Sigma and Blue Fin pool
|
243 | 943 | ||||||
|
||||||||
Due from related party - Total
|
26,146 | 40,686 | ||||||
|
||||||||
Advances for vessels and drillships under construction - Cardiff/TMS Bulkers/ TMS Tankers, for the year
|
8,484 | 7,648 | ||||||
Vessels, drilling rigs, drillships, machinery and equipment, net - Cardiff/TMS Tankers, for the year/period
|
9,195 | 7,472 | ||||||
Accounts payable and other current liabilities - Sigma Pool
|
111 | - | ||||||
Trade Accounts Receivable – Accrued Receivables – Sigma and Blue Fin pools
|
549 | 818 | ||||||
Other current assets - Sigma and Blue Fin pool
|
3,635 | 2,658 | ||||||
Other non-current assets - Sigma and Blue Fin pool
|
675 | 275 | ||||||
Other non-current assets - TMS Dry
|
$ | 4,140 | $ | - |
|
Year ended December 31,
|
|||||||||||
Statement of Operations
|
2010
|
2011
|
2012
|
|||||||||
Voyage Revenues - Sigma and Blue Fin pool.
|
$ | - | $ | 12,655 | $ | 27,306 | ||||||
Voyage expenses - Cardiff Marine Inc.
|
(5,614 | ) | - | - | ||||||||
Voyage expenses - TMS Tankers
|
- | (158 | ) | (507 | ) | |||||||
Voyage expenses - TMS Bulkers
|
- | (4,420 | ) | (3,166 | ) | |||||||
Voyage expenses - TMS Dry
|
- | (236 | ) | - | ||||||||
Voyage expenses - Cardiff Tankers
|
- | - | (166 | ) | ||||||||
Gain on sale of assets - commissions - Cardiff Marine Inc.
|
(772 | ) | - | - | ||||||||
Gain on sale of assets - commissions - TMS Bulkers
|
- | (1,166 | ) | (1,180 | ) | |||||||
Contract termination fees and forfeiture of vessel deposits
|
- | - | (300 | ) | ||||||||
General and administrative expenses:
|
||||||||||||
- Consultancy fees - Fabiana Services S.A.
|
(7,598 | ) | (3,779 | ) | (4,397 | ) |
Year ended December 31,
|
||||||||||||
Statement of Operations
|
2010
|
2011
|
2012
|
|||||||||
- Management fees - Cardiff Marine Inc.
|
(20,139 | ) | - | - | ||||||||
- Management fees - TMS Tankers
|
- | (2,293 | ) | (5,151 | ) | |||||||
- Management fees - TMS Bulkers
|
- | (26,771 | ) | (26,518 | ) | |||||||
- Management fees - TMS Dry
|
- | (1,602 | ) | - | ||||||||
- Consultancy fees - Vivid
|
(1,700 | ) | (5,958 | ) | (14,201 | ) | ||||||
- SOX fees - Cardiff Marine Inc.
|
(1,983 | ) | - | - | ||||||||
- Rent
|
(12 | ) | (29 | ) | (41 | ) | ||||||
- Amortization of CEO stock based compensation
|
$ | (24,009 | ) | $ | (26,447 | ) | $ | (12,663 | ) |
|
December 31,
|
|||||||
|
2011
|
2012
|
||||||
Inventories
|
$ | 15,681 | $ | 29,272 | ||||
Deferred mobilization expenses
|
38,052 | 46,407 | ||||||
Prepayments and advances
|
15,750 | 18,220 | ||||||
Swap cash collateral
|
- | 8,000 | ||||||
Other
|
10,569 | 20,876 | ||||||
|
$ | 80,052 | $ | 122,775 |
|
December 31,
|
|||||||
|
2011
|
2012
|
||||||
Balance at beginning of year
|
$ | 2,072,699 | $ | 1,027,889 | ||||
Advances for vessels/drillships under construction and related costs
|
2,632,660 | 524,511 | ||||||
Advances forfeited due to cancellation of vessels under construction
|
- | (19,939 | ) | |||||
Vessels/drillships delivered
|
(3,677,470 | ) | (330,654 | ) | ||||
Balance at end of year
|
$ | 1,027,889 | $ | 1,201,807 |
|
Cost
|
Accumulated
Depreciation
|
Net Book
Value
|
|||||||||
Balance, December 31, 2010
|
$ | 2,328,845 | $ | (410,879 | ) | $ | 1,917,966 | |||||
Additions/transfers from vessels under construction
|
441,155 | - | 441,155 | |||||||||
Vessel disposals
|
(116,600 | ) | 1,157 | (115,443 | ) | |||||||
Vessel total constructive loss
|
(35,261 | ) | 2,125 | (33,136 | ) | |||||||
Depreciation
|
- | (109,584 | ) | (109,584 | ) | |||||||
Vessel impairment charge
|
(253,432 | ) | 108,744 | (144,688 | ) | |||||||
Balance, December 31, 2011
|
2,364,707 | (408,437 | ) | 1,956,270 | ||||||||
Additions/transfers from vessels under construction
|
330,654 | - | 330,654 | |||||||||
Vessel disposals
|
(132,950 | ) | 15,249 | (117,701 | ) | |||||||
Depreciation
|
- | (109,653 | ) | (109,653 | ) | |||||||
Balance, December 31, 2012
|
$ | 2,562,411 | $ | (502,841 | ) | $ | 2,059,570 |
|
Cost
|
Accumulated
Depreciation
|
Net Book
Value
|
|||||||||
Balance, December 31, 2010
|
$ | 1,441,630 | $ | (192,297 | ) | $ | 1,249,333 | |||||
Additions
|
3,502,233 | - | 3,502,233 | |||||||||
Disposals
|
(1,147 | ) | 381 | (766 | ) | |||||||
Depreciation
|
- | (162,884 | ) | (162,884 | ) | |||||||
|
||||||||||||
Balance, December 31, 2011
|
$ | 4,942,716 | $ | (354,800 | ) | $ | 4,587,916 | |||||
Additions
|
82,940 | - | 82,940 | |||||||||
Disposals
|
(4,148 | ) | 3,835 | (313 | ) | |||||||
Depreciation
|
- | (223,813 | ) | (223,813 | ) | |||||||
|
||||||||||||
Balance December 31, 2012
|
$ | 5,021,508 | $ | (574,778 | ) | $ | 4,446,730 |
Assets:
|
||||
Current assets
|
$ | 12,353 | ||
Vessels
|
187,000 | |||
Vessels under construction
|
31,822 | |||
Above-market acquired time charters
|
47,320 | |||
Other non-current assets
|
7,589 | |||
Total assets acquired
|
286,084 | |||
|
||||
Liabilities:
|
||||
Current liabilities, excluding current portion of long-term bank debt and current portion of financial instruments
|
23,774 | |||
Bank debt, including current portion of $26,524
|
137,711 | |||
Financial Instruments, including current portion of $5,990
|
9,017 | |||
Non controlling interest
|
57,257 | |||
Total liabilities
|
227,759 | |||
Net assets acquired
|
$ | 58,325 | ||
Cash consideration
|
$ | 33,760 | ||
Consideration paid in Ocean Rig UDW's shares (1,570,226 shares exchanged)*
|
24,565 | |||
Total consideration
|
$ | 58,325 |
|
* Closing price of Ocean Rig common shares as of August 24, 2011 used for the determination of the consideration paid.
|
Amortization Schedule
|
||||||||||||||||||||||||||||
Amount
Acquired
|
Amortization
as of
December 31,
2011
|
2012
|
2013
|
2014
|
2015
|
2016
and thereafter
|
||||||||||||||||||||||
Above-market acquired time charters
|
$ | 47,320 | 7,218 | 17,012 | 11,928 | 7,957 | 1,299 | $ | 1,906 |
|
|
Year ended December 31,
|
|
|||||
|
|
2010
|
|
|
2011
|
|
||
Pro forma revenues
|
|
$
|
947,846
|
|
|
$
|
1,107,854
|
|
Pro forma operating income
|
|
|
318,873
|
|
|
|
173,188
|
|
Pro forma net income/ (loss)
|
|
|
121,120
|
|
|
|
(58,225)
|
|
Pro forma per share amounts:
|
|
|
|
|
|
|
||
Basic net income/ (loss) per share
|
|
$
|
0.39
|
|
|
$
|
(0.24)
|
|
|
|
|
Amortization Schedule
|
||||||||||||||||||||||||||||
|
Amount
Acquired
|
Accumulated
amortization
as of
December 31,
2011
|
Amortization
for the year
ended
December 31,
2012
|
2013
|
2014
|
2015
|
2016
|
2017 and
thereafter
|
||||||||||||||||||||||||
Trade names
|
$ | 9,145 | $ | 3,555 | $ | 878 | $ | 877 | $ | 877 | $ | 877 | $ | 877 | $ | 1,204 | ||||||||||||||||
Software
|
5,888 | 2,416 | 565 | 565 | 565 | 565 | 565 | 647 | ||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||
Total Intangible Assets, net
|
$ | 15,033 | $ | 5,971 | $ | 1,443 | $ | 1,442 | $ | 1,442 | $ | 1,442 | $ | 1,442 | $ | 1,851 | ||||||||||||||||
|
||||||||||||||||||||||||||||||||
Above-market acquired time charters and drilling contracts
|
$ | 62,373 | $ | 22,271 | $ | 20,527 | $ | 10,759 | $ | 7,443 | $ | 1,373 | $ | - | $ | - |
|
December 31,
|
|||||||
|
2011
|
2012
|
||||||
Security deposits for derivatives
|
$ | 33,100 | $ | 550 | ||||
Option for construction of drillships
|
24,756 | - | ||||||
Deferred mobilization expenses
|
24,176 | 53,615 | ||||||
Other
|
15,540 | 29,125 | ||||||
|
||||||||
|
$ | 97,572 | $ | 83,290 |
|
December 31, 2011
|
December 31, 2012
|
||||||
5% Convertible Senior Unsecured Notes
|
$ | 700,000 | $ | 700,000 | ||||
9.5% Ocean Rig Senior Unsecured Notes
|
500,000 | 500,000 | ||||||
6.5% Drill Rigs Senior Secured Notes
|
- | 800,000 | ||||||
Loan Facilities - Drybulk Segment
|
841,453 | 716,354 | ||||||
Loan Facilities - Tanker Segment
|
130,048 | 224,985 | ||||||
Loan Facilities - Drilling Segment
|
2,279,167 | 1,607,500 | ||||||
Less: Deferred financing costs
|
(192,183 | ) | (162,124 | ) | ||||
Less: Dryships participation in Ocean Rig Senior Notes
|
(18,000 | ) | - | |||||
Add: Valuation of Dryships participation in Ocean Rig Senior Notes
|
1,350 | - | ||||||
|
||||||||
Total debt
|
4,241,835 | 4,386,715 | ||||||
Less: Current portion
|
(429,149 | ) | (1,102,085 | ) | ||||
|
||||||||
Long-term portion
|
$ | 3,812,686 | $ | 3,284,630 |
Loan
|
Loan agreement date
|
Original Amount
|
December 31, 2011
|
New Loans
|
Repayments
|
December 31, 2012
|
||||||||||||||||
Term Bank Loan
|
October 2, 2007
|
$ | 35,000 | $ | 17,500 | - | - | $ | 17,500 | |||||||||||||
Term Bank Loan
|
December 4, 2007
|
101,150 | 14,284 | - | (14,284 | ) | - | |||||||||||||||
Term Bank Loan
|
October 5, 2007
|
90,000 | 61,500 | - | (4,500 | ) | 57,000 | |||||||||||||||
Term Bank Loan
|
June 20, 2008
|
103,200 | 31,600 | - | (4,350 | ) | 27,250 | |||||||||||||||
Term Bank Loan
|
May 13, 2008
|
125,000 | 51,000 | - | (23,515 | ) | 27,485 | |||||||||||||||
Term Bank Loan
|
May 5, 2008
|
90,000 | 48,000 | - | (6,000 | ) | 42,000 | |||||||||||||||
Term Bank Loan
|
November 16, 2007
|
47,000 | 20,000 | - | (2,000 | ) | 18,000 | |||||||||||||||
Term Bank Loan
|
July 23, 2008
|
126,400 | 85,350 | - | (21,525 | ) | 63,825 | |||||||||||||||
Term Bank Loan
|
March 13, 2008
|
130,000 | 38,265 | - | (5,350 | ) | 32,915 | |||||||||||||||
Term Bank Loan
|
February 7, 2011
|
70,000 | 66,500 | - | (4,667 | ) | 61,833 | |||||||||||||||
Term Bank Loan
|
April 20, 2011
|
32,313 | 31,236 | - | (2,154 | ) | 29,082 | |||||||||||||||
Term Bank Loan
|
October 26, 2011
|
141,350 | 32,313 | 109,038 | (7,281 | ) | 134,070 | |||||||||||||||
Term Bank Loan
|
April 15, 2011
|
800,000 | 766,667 | - | (66,667 | ) | 700,000 | |||||||||||||||
Term Bank Loan
|
October 24, 2012
|
107,669 | - | - | - | - | ||||||||||||||||
Credit Facility
|
March 31, 2006
|
753,637 | 344,373 | - | (72,803 | ) | 271,570 | |||||||||||||||
Credit Facility
|
September 17, 2008
|
1,040,000 | 522,500 | - | (522,500 | ) | - | |||||||||||||||
Credit Facility
|
March 19, 2012
|
87,654 | - | 19,065 | (894 | ) | 18,171 | |||||||||||||||
Credit Facility
|
July 18, 2008
|
1,125,000 | 990,000 | - | (82,500 | ) | 907,500 | |||||||||||||||
Credit Facility
|
February 14, 2012
|
122,580 | - | 38,000 | (420 | ) | 37,580 | |||||||||||||||
Credit Facility
|
September 18, 2007
|
325,000 | 129,580 | - | (26,522 | ) | 103,058 | |||||||||||||||
5% Convertibl Senior Unsecured Notes
|
November 21, 2009
|
460,000 | 700,000 | - | - | 700,000 | ||||||||||||||||
9.5% Ocean Rig's Senior Unsecured Notes
|
April 27, 2011
|
$ | 500,000 | 483,350 | 16,650 | - | 500,000 | |||||||||||||||
6.5% Drill Rigs Senior Secured Notes
|
September 20, 2012
|
$ | 800,000 | - | 800,000 | - | 800,000 | |||||||||||||||
$ | 4,434,018 | 982,753 | (867,932 | ) | $ | 4,548,839 |
2013
|
1,118,005 | |||
2014
|
876,667 | |||
2015
|
176,667 | |||
2016
|
1,110,000 | |||
2017
|
910,000 | |||
2018 and thereafter
|
357,500 | |||
Total principal payments
|
4,548,839 | |||
Less: Financing fees and equity component of notes
|
(162,124 | ) | ||
Total debt
|
4,386,715 |
|
|
Asset Derivatives
|
Liability Derivatives
|
|||||||||||||||
Derivatives not designated as hedging
instruments
|
Balance Sheet
Location
|
December 31,
2011
Fair value
|
December 31,
2012
Fair value
|
Balance Sheet
Location
|
December 31,
2011
Fair value
|
December 31,
2012
Fair value
|
||||||||||||
Interest rate swaps
|
Financial instruments-
current assets
|
$ | - | $ | - |
Financial instruments-
current liabilities
|
$ | 100,104 | $ | 85,844 | ||||||||
Interest rate swaps
|
Financial instruments-
non-current assets
|
- | 996 |
Financial instruments-
non-current liabilities
|
102,346 | 63,096 | ||||||||||||
|
||||||||||||||||||
Total derivatives not designated as hedging instruments
|
$ | - | $ | 996 | $ | 202,450 | $ | 148,940 | ||||||||||
|
||||||||||||||||||
Total derivatives
|
$ | - | $ | 996 |
Total derivatives
|
$ | 202,450 | $ | 148,940 | |||||||||
|
|
Amount of Gain/
(Loss) Recognized in other comprehensive
income/ (loss) on Derivatives (Effective Portion)
|
|||||||||||
Derivatives designated for cash flow hedging relationships
|
Year Ended
December 31,
2010
|
Year Ended
December 31,
2011
|
Year Ended
December 31,
2012
|
|||||||||
Interest rate swaps - Unrealized gains/(losses)
|
$ | (5,495 | ) | $ | - | $ | - | |||||
Interest rate swaps - Realized losses associated with capitalized interest
|
(11,539 | ) | - | - | ||||||||
|
||||||||||||
Total
|
$ | (17,034 | ) | $ | - | $ | - |
|
|
Amount of Gain/(Loss)
|
||||||||||||
Derivatives not designated as hedging instruments
|
Location of Gain or (Loss) Recognized
|
Year Ended
December 31,
2010
|
Year Ended
December 31,
2011
|
Year Ended
December 31,
2012
|
||||||||||
Interest rate swaps
|
Loss on interest rate swaps
|
$ | (120,505 | ) | $ | (68,943 | ) | $ | (54,073 | ) | ||||
Forward freight agreements
|
Other, net
|
(3,008 | ) | 1,016 | - | |||||||||
Foreign currency forward contracts
|
Other, net
|
1,104 | (1,538 | ) | - | |||||||||
|
||||||||||||||
Total
|
$ | (122,409 | ) | $ | (69,465 | ) | $ | (54,073 | ) | |||||
|
December 31,
2011
|
Quoted Prices
in Active
Markets for
Identical
Assets/
Liabilities
(Level 1)
|
Significant Other
Observable
Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
|||||||||||||
Recurring measurements:
|
|
|
|
|
||||||||||||
Interest rate swaps - liability position
|
$ | (202,450 | ) | $ | - | $ | (202,450 | ) | $ | - | ||||||
Total
|
$ | (202,450 | ) | $ | - | $ | (202,450 | ) | $ | - |
|
December 31,
2012
|
Quoted Prices
in Active
Markets for
Identical
Assets/
Liabilities
(Level 1)
|
Significant Other
Observable
Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
||||||||||||
Recurring measurements:
|
||||||||||||||||
Interest rate swaps - asset position
|
$ | 996 | $ | - | $ | 996 | $ | - | ||||||||
Interest rate swaps - liability position
|
$ | (148,940 | ) | $ | - | $ | (148,940 | ) | $ | - | ||||||
|
||||||||||||||||
Total
|
$ | (147,944 | ) | $ | - | $ | (147,944 | ) | $ | - | ||||||
|
|
December 31,
2011
|
Quoted Prices
in Active
Markets for
Identical
Assets/
Liabilities
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
Gains/
(Losses)
|
|||||||||||||||
Non-Recurring measurements:
|
|
|
|
|
|
|||||||||||||||
Long-lived assets held and used
|
$ | 82,550 | $ | - | $ | 82,550 | $ | - | $ | (32,584 | ) | |||||||||
|
||||||||||||||||||||
Total
|
$ | 82,550 | $ | - | $ | 82,550 | $ | - | $ | (32,584 | ) | |||||||||
|
Year Ended December 31,
|
||||||||||||
2010
|
2011
|
2012
|
||||||||||
Net income/(loss) attributable to Dryships Inc.
|
$ | 188,327 | $ | (70,128 | ) | $ | (246,778 | ) | ||||
Transfers to the non-controlling interest:
|
||||||||||||
Decrease in Dryships Inc. equity for reduction in subsidiary ownership
|
(153,092 | ) | (75,231 | ) | (81,760 | ) | ||||||
Net transfers to the non-controlling interest
|
(153,092 | ) | (75,231 | ) | (81,760 | ) | ||||||
|
||||||||||||
Net income/ (loss) attributable to Dryships Inc. and transfers to/from the non-controlling interest
|
$ | 35,235 | $ | (145,359 | ) | $ | (328,538 | ) |
|
Number of
non
vested shares
|
Weighted average grant
date fair value per
non vested shares
|
||||||
Balance December 31, 2009
|
202,971 | $ | 48.69 | |||||
Granted
|
4,503,000 | 6.05 | ||||||
Forfeited
|
(3,600 | ) | 33.59 | |||||
Vested
|
(2,171,173 | ) | 10.00 | |||||
Balance December 31, 2010
|
2,531,198 | $ | 6.04 | |||||
Granted
|
9,015,000 | 5.50 | ||||||
Vested
|
(3,036,048 | ) | 5.68 | |||||
Balance December 31, 2011
|
8,510,150 | $ | 5.60 | |||||
Vested
|
(2,505,150 | ) | 5.83 | |||||
|
||||||||
Balance December 31, 2012
|
6,005,000 | $ | 5.50 |
|
Number of
vested shares
|
Weighted average grant
date fair value per
vested shares
|
||||||
As at December 31, 2009
|
885,650 | $ | 74.59 | |||||
Granted and vested
|
2,002,000 | 6.05 | ||||||
Non vested shares granted in prior years and vested 2010
|
169,173 | 56.73 | ||||||
|
||||||||
As at December 31, 2010
|
3,056,823 | $ | 28.71 | |||||
Granted and vested
|
2,005,000 | 5.50 | ||||||
Non vested shares granted in prior years and vested 2011
|
1,031,048 | 6.03 | ||||||
|
||||||||
As at December 31, 2011
|
6,092,871 | $ | 17.23 | |||||
Non vested shares granted in prior years and vested 2012
|
2,505,150 | 5.83 | ||||||
|
||||||||
As at December 31, 2012
|
8,598,021 | $ | 13.91 |
|
Number of
non vested
shares
|
Weighted average grant
date fair value per
non vested shares
|
||||||
Balance December 31, 2011
|
- | - | ||||||
Granted
|
153,150 | 16.34 | ||||||
Forfeited
|
(77,150 | ) | 16.28 | |||||
Vested
|
(2,500 | ) | 16.50 | |||||
|
||||||||
Balance December 31, 2012
|
73,500 | $ | 16.40 |
|
2011
|
2012
|
||||||
Benefit obligation at January 1
|
$ | 8,097 | $ | 9,920 | ||||
Service cost for benefits earned
|
1,445 | 1,440 | ||||||
Interest cost
|
329 | 259 | ||||||
Actuarial gains
|
539 | 20 | ||||||
Benefits paid
|
(87 | ) | (60 | ) | ||||
Payroll tax of employer contribution
|
(57 | ) | (92 | ) | ||||
Foreign currency exchange rate changes
|
(346 | ) | 799 | |||||
Benefit obligation at end of year
|
$ | 9,920 | $ | 12,286 |
|
2011
|
2012
|
||||||
Fair value of plan assets at January 1
|
$ | 7,495 | $ | 7,374 | ||||
Expected return on plan assets
|
356 | 242 | ||||||
Actual return on plan assets
|
(604 | ) | (542 | ) | ||||
Employer contributions
|
406 | 655 | ||||||
Settlement
|
(87 | ) | (60 | ) | ||||
Foreign currency exchange rate changes
|
(192 | ) | 560 | |||||
Fair value of plan assets at end of year
|
$ | 7,374 | $ | 8,229 | ||||
Unfunded status at end of year
|
$ | 2,546 | $ | 4,057 |
|
2010 |
2011
|
2012
|
||||||||
Net actuarial loss
|
$ | 3,046 | $ | 2,104 | $ | 1,467 | |||||
Prior service cost | - | - | - | ||||||||
Defined benefit plan adjustment, net of tax of $0
|
$ | 3,046 | $ | 2,104 | $ | 1,467 |
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Expected return on plan assets
|
$ | (395 | ) | $ | (356 | ) | $ | (242 | ) | |||
Service cost
|
2,021 | 1,445 | 1,440 | |||||||||
Interest cost
|
334 | 329 | 259 | |||||||||
Amortization of actuarial loss
|
47 | 116 | 184 | |||||||||
Settlement
|
1 | - | - | |||||||||
Net periodic pension cost
|
$ | 2,008 | $ | 1,534 | $ | 1,641 |
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Net actuarial loss/(gain)
|
$ | 1,101 | $ | 234 | $ | (581 | ) | |||||
Prior service cost (credit)
|
(1,020 | ) | 1,133 | 276 | ||||||||
Amortization of actuarial loss
|
(506 | ) | (425 | ) | 942 | |||||||
Total defined benefit plan adjustments net of tax $0
|
$ | (425 | ) | $ | 942 | $ | 637 | |||||
|
|
December 31, 2010
|
December 31, 2011
|
December 31, 2012
|
|||||||||
Weighted average assumptions
|
|
|
|
|||||||||
Expected return on plan assets
|
5.40 | % | 4.10 | % | 4.00 | % | ||||||
Discount rate
|
4.00 | % | 2.60 | % | 2.30 | % | ||||||
Compensation increases
|
4.00 | % | 3.50 | % | 3.50 | % |
2011
|
2012
|
|||||||
Share and other equity investments
|
$ | 1,123 | $ | 1,467 | ||||
Bonds and other security - fixed yield
|
3,402 | 4,432 | ||||||
Bonds held to maturity
|
1,261 | 661 | ||||||
Properties and real estate
|
1,279 | 1,226 | ||||||
Money market
|
78 | 88 | ||||||
Other
|
231 | 355 | ||||||
Total plan net assets at fair value
|
$ | 7,374 | $ | 8,229 |
|
December 31,
|
|||||||
|
2011
|
2012
|
||||||
Shares and other equity instruments
|
15 | % | 18 | % | ||||
Bonds
|
64 | % | 62 | % | ||||
Properties and real estate
|
17 | % | 15 | % | ||||
Other
|
4 | % | 5 | % | ||||
|
||||||||
Total
|
100 | % | 100 | % |
|
||||||||||||||||
|
Level 1
|
Level 2
|
Level 3
|
Total
|
||||||||||||
Equity securities:
|
||||||||||||||||
US Equities
|
$ | 658 | $ | — | $ | — | $ | 658 | ||||||||
Non-US Equities
|
157 | — | 308 | 465 | ||||||||||||
Fixed Income:
|
||||||||||||||||
Government Bonds
|
2,891 | 549 | — | 3,440 | ||||||||||||
Corporate Bonds
|
978 | 245 | — | 1,223 | ||||||||||||
Alternative Investments:
|
||||||||||||||||
Hedge funds and limited partnerships
|
— | 231 | — | 231 | ||||||||||||
Cash and cash equivalents
|
78 | — | — | 78 | ||||||||||||
Real Estate
|
— | — | 1,279 | 1,279 | ||||||||||||
|
||||||||||||||||
Net Plan Net Assets
|
$ | 4,762 | $ | 1,025 | $ | 1,587 | $ | 7,374 | ||||||||
|
|
Level 1
|
Level 2
|
Level 3
|
Total
|
||||||||||||
Equity securities:
|
|
|
|
|
||||||||||||
US Equities
|
$ | 887 | $ | - | $ | - | $ | 887 | ||||||||
Non-US Equities
|
209 | - | 371 | 580 | ||||||||||||
Fixed Income:
|
||||||||||||||||
Government Bonds
|
628 | 33 | - | 661 | ||||||||||||
Corporate Bonds
|
3,546 | 886 | - | 4,432 | ||||||||||||
Alternative Investments:
|
||||||||||||||||
Hedge funds and limited partnerships
|
- | 355 | - | 355 | ||||||||||||
Cash and cash equivalents
|
88 | - | - | 88 | ||||||||||||
Real Estate
|
- | - | 1,226 | 1,226 | ||||||||||||
|
||||||||||||||||
Net Plan Net Assets
|
$ | 5,358 | $ | 1,274 | $ | 1,597 | $ | 8,229 | ||||||||
|
|
Year ended December 31,
|
|||||||
|
2011
|
2012
|
||||||
Balance, beginning of year
|
$ | 1,338 | $ | 1,587 | ||||
Actual return on plan assets:
|
||||||||
Assets still held at reporting date
|
177 | 63 | ||||||
Purchases, sales, issuances and settlements (net)
|
72 | (53 | ) | |||||
|
||||||||
Net Plan Net Assets
|
$ | 1,587 | $ | 1,597 |
December 31, 2013
|
$ | 93 | ||
December 31, 2014
|
135 | |||
December 31, 2015
|
135 | |||
December 31, 2016
|
220 | |||
December 31, 2017
|
181 | |||
December 31, 2018 – 2021
|
2,190 | |||
|
||||
Total pension payments
|
$ | 2,954 |
Obligations:
|
Total
|
1st year
|
2nd year
|
3rd year
|
||||||||||||
Vessels shipbuilding contracts
|
$ | 511,915 | $ | 365,795 | $ | 146,120 | $ | - | ||||||||
Drillship shipbuilding contracts
|
1,566,876 | 1,179,776 | - | 387,100 | ||||||||||||
|
||||||||||||||||
Total obligations
|
$ | 2,078,791 | $ | 1,545,571 | $ | 146,120 | $ | 387,100 |
|
Year ended December 31,
|
|||||||||||||||||||||||
|
2011
|
2012
|
||||||||||||||||||||||
|
Attributable
to Dryships
Inc
|
Attributable
to non
controlling
interest
|
Total
|
Attributable
to Dryships
Inc
|
Attributable
to non
controlling
interest
|
Total
|
||||||||||||||||||
Cash flows hedges unrealized loss
|
$ | (16,921 | ) | $ | (5,983 | ) | $ | (22,904 | ) | $ | - | $ | - | $ | - | |||||||||
Cash flows hedges realized loss
|
(11,893 | ) | (4,204 | ) | (16,097 | ) | (10,130 | ) | (5,418 | ) | (15,548 | ) | ||||||||||||
Senior notes unrealized loss
|
(1,350 | ) | - | (1,350 | ) | - | - | - | ||||||||||||||||
Actuarial pension gain
|
1,554 | 550 | 2,104 | 955 | 512 | 1,467 | ||||||||||||||||||
|
||||||||||||||||||||||||
Total
|
$ | (28,610 | ) | $ | (9,637 | ) | $ | (38,247 | ) | $ | (9,175 | ) | $ | (4,906 | ) | $ | (14,081 | ) |
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Interest incurred on long-term debt
|
$ | 99,044 | $ | 156,088 | $ | 205,070 | ||||||
Amortization and write-off of financing fees
|
8,249 | 21,952 | 17,565 | |||||||||
Amortization of convertible notes discount
|
26,516 | 34,144 | 38,855 | |||||||||
Amortization of share lending agreement-note issuance costs
|
2,617 | 2,974 | 2,983 | |||||||||
Other
|
8,850 | 7,083 | 4,622 | |||||||||
Capitalized interest
|
(78,451 | ) | (76,068 | ) | (58,967 | ) | ||||||
|
||||||||||||
Total
|
$ | 66,825 | $ | 146,173 | $ | 210,128 |
Drybulk Segment
|
Drilling Segment |
Tanker Segment
|
TOTAL
|
|||||||||||||||||||||||||||||||||||||||||||||
2010
|
2011
|
2012
|
2010
|
2011
|
2012
|
2010
|
2011
|
2012
|
2010
|
2011
|
2012
|
|||||||||||||||||||||||||||||||||||||
Revenues
|
$ | 457,804 | $ | 365,361 | $ | 227,141 | $ | 401,941 | $ | 699,649 | $ | 941,903 | $ | - | $ | 12,652 | $ | 41,095 | $ | 859,745 | $ | 1,077,662 | $ | 1,210,139 | ||||||||||||||||||||||||
Vessels and rigs/drillships operating expenses
|
71,245 | 81,947 | 69,640 | 119,369 | 281,833 | 563,583 | - | 9,342 | 16,499 | 190,614 | 373,122 | 649,722 | ||||||||||||||||||||||||||||||||||||
Depreciation and amortization
|
117,799 | 103,436 | 94,716 | 75,092 | 164,632 | 225,650 | - | 6,213 | 15,092 | 192,891 | 274,281 | 335,458 | ||||||||||||||||||||||||||||||||||||
(Gain)/loss on sale of assets
|
(10,893 | ) | 2,603 | 1,046 | 1,458 | 754 | 133 | - | - | - | (9,435 | ) | 3,357 | 1,179 | ||||||||||||||||||||||||||||||||||
Impairment charge
|
3,588 | 144,688 | - | - | - | - | - | - | - | 3,588 | 144,688 | - | ||||||||||||||||||||||||||||||||||||
General and administrative expenses
|
65,874 | 70,974 | 52,576 | 22,702 | 46,718 | 83,647 | - | 5,555 | 9,712 | 88,576 | 123,247 | 145,935 | ||||||||||||||||||||||||||||||||||||
Gain/(loss) on interest rate swaps
|
(80,202 | ) | (35,488 | ) | (13,229 | ) | (40,303 | ) | (33,455 | ) | (36,974 | ) | - | - | (3,870 | ) | (120,505 | ) | (68,943 | ) | (54,073 | ) | ||||||||||||||||||||||||||
Gain/(loss) on FFA's
|
- | (4,724 | ) | (13,934 | ) | - | - | - | - | 4,724 | 13,934 | - | - | - | ||||||||||||||||||||||||||||||||||
Income taxes
|
- | - | - | (20,436 | ) | (27,428 | ) | (43,957 | ) | - | - | - | (20,436 | ) | (27,428 | ) | (43,957 | ) | ||||||||||||||||||||||||||||||
Net income/(loss)
|
20,373 | (144,314 | ) | (115,423 | ) | 170,077 | 97,463 | (129,396 | ) | - | (435 | ) | (43,774 | ) | 190,450 | (47,286 | ) | (288,593 | ) | |||||||||||||||||||||||||||||
Net income/(loss) attributable to Dryships Inc.
|
20,373 | (144,314 | ) | (115,423 | ) | 167,954 | 74,621 | (87,581 | ) | - | (435 | ) | (43,774 | ) | 188,327 | (70,128 | ) | (246,778 | ) | |||||||||||||||||||||||||||||
Interest and finance cost
|
(91,421 | ) | (90,447 | ) | (95,545 | ) | 24,596 | (59,487 | ) | (112,316 | ) | - | 3,761 | (2,267 | ) | (66,825 | ) | (146,173 | ) | (210,128 | ) | |||||||||||||||||||||||||||
Interest income
|
9,402 | 6,733 | 3,645 | 12,464 | 9,810 | 553 | - | 32 | 5 | 21,866 | 16,575 | 4,203 | ||||||||||||||||||||||||||||||||||||
Change in fair value of derivatives (gain)/loss
|
15,320 | (23,041 | ) | (41,801 | ) | 33,119 | (15,114 | ) | (16,063 | ) | - | - | 3,358 | 48,439 | (38,155 | ) | (54,506 | ) | ||||||||||||||||||||||||||||||
Total assets
|
$ | 2,470,323 | $ | 2,124,848 | $ | 2,020,180 | $ | 4,389,905 | $ | 6,066,646 | 6,278,860 | $ | 124,266 | $ | 430,195 | $ | 579,451 | $ | 6,984,494 | $ | 8,621,689 | 8,878,491 |
|
2010
|
2011
|
2012
|
|||||||||
Ghana
|
$ | 227,649 | $ | 230,018 | $ | 175,595 | ||||||
Turkey
|
176,228 | 50,183 | - | |||||||||
Norway
|
(715 | ) | - | - | ||||||||
Brazil
|
- | (617 | ) | 233,569 | ||||||||
Namibia
|
- | - | 33,212 | |||||||||
Ivory Coast
|
- | 89,686 | - | |||||||||
Greenland
|
- | 253,125 | 136 | |||||||||
Angola
|
- | - | 79,884 | |||||||||
Falkland
|
- | - | 166,795 | |||||||||
Equatorial Guinea
|
- | - | 56,297 | |||||||||
Tanzania
|
- | 78,424 | 196,416 | |||||||||
|
||||||||||||
Total leasing and service revenues
|
$ | 403,162 | $ | 700,819 | $ | 941,903 | ||||||
|
|
For the years ended December 31,
|
|||||||||||||||||||||||||||||||||||
|
2010
|
2011
|
2012
|
|||||||||||||||||||||||||||||||||
|
Income
(numerator)
|
Weighted-
average
number of
outstanding
shares
(denominator)
|
Amount
per share
|
Income
(numerator)
|
Weighted-
average
number of
outstanding
share
(denominator)
|
Amount
per share
|
Income
(numerator)
|
Weighted-
average
number of
outstanding
shares
(denominator)
|
Amount
per share
|
|||||||||||||||||||||||||||
Net income/(loss) attributable to DryShips Inc.
|
$ | 188,327 | - | $ | - | $ | (70,128 | ) | - | $ | - | (246,778 | ) | - | $ | - | ||||||||||||||||||||
Less: Series A Convertible
|
||||||||||||||||||||||||||||||||||||
Preferred stock dividends
|
(13,624 | ) | - | - | (4,466 | ) | - | - | - | - | - | |||||||||||||||||||||||||
-Less: Non-vested common stock dividends declared and undistributed earnings
|
(2,139 | ) | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||
Basic EPS
|
||||||||||||||||||||||||||||||||||||
Income/(loss) available to common stockholders
|
$ | 172,564 | 268,858,688 | $ | 0.64 | $ | (74,594 | ) | 355,144,764 | $ | (0.21 | ) | (246,778 | ) | 380,159,088 | (0.65 | ) | |||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||
Dilutive effect of securities
|
||||||||||||||||||||||||||||||||||||
Preferred stock dividends
|
13,624 | 36,567,164 | - | - | - | - | - | - | - | |||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||
Diluted EPS
|
||||||||||||||||||||||||||||||||||||
Income/(loss) available to common stockholders
|
$ | 186,188 | 305,425,852 | $ | 0.61 | $ | (74,594 | ) | 355,144,764 | $ | (0.21 | ) | (246,778 | ) | 380,159,088 | (0.65 | ) | |||||||||||||||||||
|
|
Year ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Domestic income/(loss) (Marshall Islands)
|
$ | 174,794 | $ | 190,940 | $ | (67,582 | ) | |||||
Foreign income/(loss)
|
(19,597 | ) | (68,214 | ) | (20,797 | ) | ||||||
|
||||||||||||
Total income/(loss) before taxes
|
$ | 155,197 | $ | 122,726 | (88,379 | ) | ||||||
|
|
Year Ended December 31,
|
|||||||||||
|
2010
|
2011
|
2012
|
|||||||||
Current Tax expense
|
$ | 20,227 | $ | 27,637 | $ | 43,957 | ||||||
Deferred Tax expense / (benefit)
|
209 | (209 | ) | - | ||||||||
Income taxes
|
$ | 20,436 | $ | 27,428 | $ | 43,957 | ||||||
|
||||||||||||
Effective tax rate
|
13 | % | 22 | % | (50 | )% |
|
Year Ended December 31,
|
|||||||||||
Reconciliation of total tax expense:
|
2010
|
2011
|
2012
|
|||||||||
Change in valuation allowance
|
$ | (14,922 | ) | $ | (41,870 | ) | $ | 6,311 | ||||
Differences in tax rates
|
14,177 | (3,288 | ) | (3,896 | ) | |||||||
Effect of permanent differences
|
40 | 2 | 120 | |||||||||
Adjustments in respect to current income tax of previous years
|
281 | (766 | ) | 184 | ||||||||
Effect of exchange rate differences
|
1,465 | (3,318 | ) | (1,599 | ) | |||||||
Withholding tax
|
19,395 | 26,132 | 42,837 | |||||||||
Loss of tax loss carry forward because of liquidation
|
- | 50,536 | - | |||||||||
|
||||||||||||
Total
|
$ | 20,436 | $ | 27,428 | $ | 43,957 | ||||||
|
|
Year ended
December 31,
|
|||||||
|
2011
|
2012
|
||||||
Deferred tax assets
|
|
|
||||||
Net operations loss carry forward
|
$ | 8,015 | $ | 8,707 | ||||
Accelerated depreciation of assets
|
31 | 107 | ||||||
Pension
|
713 | 1,136 | ||||||
|
||||||||
Total deferred tax assets
|
$ | 8,759 | $ | 9,950 | ||||
Less: valuation allowance
|
(8,759 | ) | (9,950 | ) | ||||
|
||||||||
Total deferred tax assets, net
|
$ | - | $ | - | ||||
|
2011
|
2012
|
|||||||
ASSETS
|
||||||||
CURRENT ASSETS:
|
||||||||
Cash and cash equivalents
|
$ | 391 | $ | 45,619 | ||||
Restricted cash
|
5,140 | 52,265 | ||||||
Due from related parties
|
26,146 | 21,959 | ||||||
Other current assets
|
282 | 327 | ||||||
Total current assets
|
31,959 | 120,170 | ||||||
NON-CURRENT ASSETS:
|
||||||||
Restricted cash
|
47,533 | - | ||||||
Investments in subsidiaries*
|
5,393,250 | 5,129,133 | ||||||
Total non-current assets
|
5,440,783 | 5,129,133 | ||||||
Total assets
|
$ | 5,472,742 | $ | 5,249,303 | ||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
CURRENT LIABILITIES:
|
||||||||
Current portion of long-term debt
|
$ | 54,325 | $ | 269,436 | ||||
Due to subsidiaries*
|
1,341,243 | 1,472,759 | ||||||
Financial instruments
|
42,982 | 33,633 | ||||||
Due to related parties
|
664 | 4,704 | ||||||
Other current liabilities
|
4,489 | 4,433 | ||||||
Total current liabilities
|
1,443,703 | 1,784,965 | ||||||
NON-CURRENT LIABILITIES
|
||||||||
Long term debt, net of current portion
|
844,307 | 601,000 | ||||||
Financial instruments
|
39,404 | 16,878 | ||||||
Total non-current liabilities
|
883,711 | 617,878 | ||||||
STOCKHOLDERS' EQUITY:
|
||||||||
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2011 and 2012; 100,000,000 shares designated as Series A Convertible preferred stock; 0 shares of Series A Convertible Preferred Stock issued and outstanding at December 31, 2011 and 2012, respectively
|
- | - | ||||||
Common stock, $0.01 par value; 1,000,000,000 shares authorized at December 31, 2011 and 2012; 424,762,094 and 424,762,224 shares issued and outstanding at December 31, 2011 and 2012, respectively
|
4,247 | 4,247 | ||||||
Treasury stock; $0.01 par value; 1,000,000 and 11,000,000 shares at December 31, 2011 and 2012, respectively
|
(10 | ) | (110 | ) | ||||
Additional paid-in capital
|
2,908,950 | 2,837,525 | ||||||
Accumulated other comprehensive loss
|
(28,610 | ) | (9,175 | ) | ||||
Retained earnings
|
260,751 | 13,973 | ||||||
Total stockholders' equity
|
3,145,328 | 2,846,460 | ||||||
Total liabilities and stockholders' equity
|
$ | 5,472,742 | $ | 5,249,303 |
*
|
Eliminated in consolidation
|
2010
|
2011
|
2012
|
||||||||||
EXPENSES:
|
||||||||||||
General and administrative expenses
|
$ | (43,893 | ) | $ | (42,903 | ) | $ | (29,408 | ) | |||
Operating loss
|
(43,893 | ) | (42,903 | ) | (29,408 | ) | ||||||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs
|
(77,731 | ) | (83,025 | ) | (85,692 | ) | ||||||
Interest income
|
479 | 658 | 3,065 | |||||||||
Gain/(loss) on interest rate swaps
|
(64,162 | ) | (27,807 | ) | (9,513 | ) | ||||||
Other, net
|
(1,610 | ) | 3,809 | 672 | ||||||||
Total other (expenses), net
|
(143,024 | ) | (106,365 | ) | (91,468 | ) | ||||||
Equity in earnings/(loss) of subsidiaries*
|
375,244 | 79,140 | (125,902 | ) | ||||||||
Net income/(loss)
|
$ | 188,327 | $ | (70,128 | ) | $ | (246,778 | ) | ||||
Earnings/(loss) per share, basic
|
0.64 | (0.21 | ) | (0.65 | ) | |||||||
Weighted average number of shares, basic
|
268,858,688 | 355,144,764 | 380,159,088 | |||||||||
Earnings/(loss) per share, diluted
|
0.61 | (0.21 | ) | (0.65 | ) | |||||||
Weighted average number of shares, diluted
|
305,425,852 | 355,144,764 | 380,159,088 |
*
|
Eliminated in consolidation
|
2010
|
2011
|
2012
|
||||||||||
- Net income/(loss)
|
$ | 188,327 | $ | (70,128 | ) | $ | (246,778 | ) | ||||
Other comprehensive income/ (loss):
|
||||||||||||
- Unrealized gain/(loss) on cash flows hedges
|
(5,694 | ) | - | - | ||||||||
- Realized gain/(loss) on cash flows hedges associated with capitalized interest
|
(11,450 | ) | - | - | ||||||||
- Unrealized gain/(loss) on senior notes
|
- | (1,350 | ) | 2,059 | ||||||||
- Reclassification of gain associated with Senior Notes to Consolidated Statement of Operations, net
|
- | - | (709 | ) | ||||||||
- Reclassification of losses on previously designated cash flow hedges to Consolidated Statement of Operations, net
|
- | 10,077 | 15,261 | |||||||||
- Reclassification of realized losses associated with capitalized interest to Consolidated Statement of Operations, net
|
- | 281 | 371 | |||||||||
- Actuarial gains/(losses)
|
349 | (716 | ) | (416 | ) | |||||||
Other comprehensive income/(loss)
|
$ | (16,795 | ) | $ | 8,292 | $ | 16,566 | |||||
Comprehensive income/(loss)
|
$ | 171,532 | $ | (61,836 | ) | $ | (230,212 | ) | ||||
2010
|
2011
|
2012
|
||||||||||
Net Cash Used in Operating Activities
|
$ | (106,952 | ) | $ | (109,444 | ) | $ | (86,475 | ) | |||
Cash Flows from Investing Activities:
|
||||||||||||
Investments in subsidiaries
|
(762,639 | ) | (266,665 | ) | (107,463 | ) | ||||||
Restricted cash
|
(30,429 | ) | 3,607 | 408 | ||||||||
Net Cash Used in Investing Activities
|
(793,068 | ) | (263,058 | ) | (107,055 | ) | ||||||
Cash Flows from Financing Activities:
|
||||||||||||
Due to subsidiaries
|
425,467 | 522,339 | 131,516 | |||||||||
Proceeds from issuance of convertible notes
|
237,202 | - | - | |||||||||
Principal payments of long-term debt
|
(94,746 | ) | (159,117 | ) | (72,804 | ) | ||||||
Net proceeds from common stock issuance
|
341,774 | - | - | |||||||||
Net proceeds from sale of shares in subsidiary
|
- | - | 180,485 | |||||||||
Proceeds from share-lending arrangement
|
100 | - | - | |||||||||
Payment of financing costs
|
(314 | ) | - | (439 | ) | |||||||
Net Cash Provided by Financing Activities
|
909,483 | 363,222 | 238,758 | |||||||||
Net (decrease) / increase in cash and cash equivalents
|
9,463 | (9,280 | ) | 45,228 | ||||||||
Cash and cash equivalents at beginning of year
|
208 | 9,671 | 391 | |||||||||
Cash and cash equivalents at end of year
|
$ | 9,671 | $ | 391 | $ | 45,619 | ||||||
Year ending December 31,
|
Amount
|
|||
2013
|
$ | 271,570 | ||
2014
|
700,000 | |||
Total principal payments
|
971,570 | |||
Less-Financing fees and equity component of notes
|
(101,134 | ) | ||
Total debt
|
$ | 870,436 |
To:
|
DryShips Inc.
Trust Company Complex
Ajeltake Road
Ajeltake Island
Majuro
The Marshall Islands MI 96960
|
|
From:
|
HSH Nordbank AG
Gerhart-Hauptmann-Platz 50
D-20095Hamburg
Germany
|
1
|
Background.
|
(A)
|
By a loan agreement dated 31 March 2006 (as supplemented, amended and restated from time to time, the “Senior Loan Agreemeat”) and made between(i) Dryships Inc. as borrower (the “Borrower”), (ii) the banks and financial institutions listed in Part A of Schedule I thereto as lenders (the “Senior Lenders”), (iii) the banks and financial institutions listed in Part B of Schedule 1 thereto as swap banks (together, the “Swap Banks” and each a “Swap Bank”), (iv) ourselves as agent, lead monger, lead bookrunner and security trustee, (v) ourselves and Bank of Scotland plc (“B0S”) as joint underwriters and (vi) BOS as joint bookrunner, it was agreed that the Senior Lenders would make available to the Borrower a term loan and short-teem credit facilities of (originally) up to US$518,750,000 (the “Senior Loans’) in aggregate.
|
(B)
|
By two ISDA master agreements (each on the 1992 ISDA Master Agreement (Multicurrency-crossborder) form) and each dated 31 Much 2006 (the “Senior Master Agreement” and, in the plural, means both of them) made between the Borrower and a Swap Bank, the Borrower has entered into or will enter into certain Designated Transactions (as such term is defined in the said Senior Loan Agreement) pursuant to separate Confirmations (as such term is defined in the said Senior Loan Agreement).
|
(C)
|
By a letter (the “New Letter”) dated 20 April 2012 the Agent:
|
|
(i)
|
notified the Borrower there was a shortfall (the “Shortfall”) at that time in the security cover required to be maintained pursuant to clause 15.1 of the Senior Loan Agreement; and
|
|
(ii)
|
called on the Borrower, pursuant to clause 15.1 of the Senior Loan Agreement within 14 days of the date of the New Letter, either
|
(D)
|
Following the Borrower’s non-compliance with the terms of the New Letter and clause 15.1 of the Senior Loan Agreement, by a letter dated 8 May 2012 we reserved the rights of the Creditor Parties under the Senior Loan Agreement and all other Finance Documents.
|
(E)
|
The Borrower has requested and the Lenders agreed to receive certain additional security to rectify the Shortfall.
|
(F)
|
This Agreement sets out the terms and conditions on which the Lenders agree to:
|
|
(i)
|
receive certain additional security to rectify the Shortfall; and
|
|
(ii)
|
the consequential amendments to the Loan Agreement and the other Finance Documents in connection with those matters.
|
2
|
Agreement and amendments to the Senior Loan Agreement. Subject to the satisfaction of the conditions of this Letter and with effect from the date of this Letter, the Senior Loan Agreement shall be amended as follows:
|
(a)
|
by deleting the definition of “Shares Pledge” in clause 1.2 thereof in its entirety;
|
(b)
|
by adding the following new definitions in clause 1.2 thereof:
|
(c)
|
by replacing the words “Shares Pledge” in sub-paragraph (w) in the definition of “Finance Documents” in clause 1.1 thereof with the words ‘Pledge and Security Agreement”;
|
(d)
|
by adding to the definition of “Finance Documents” in clause 1.1 thereof a new sub-paragraph (x) as follows:
|
(e)
|
by replacing therein clause 15.10 with the following new clause:
|
|
(a)
|
to execute and deliver on the first date of the Additional Security Period the Pledge and Security Agreement and, to cause Ocean Rig as Issuer, to execute and deliver together with the Borrower, the Control Agreement referred to therein in respect of the Required Shares; and
|
|
(b)
|
deliver to the Agent such other documents equivalent to those referred to in paragraphs 3, 4 and 5 of Schedule 5, Part A as the Agent may require in connection with the execution of the Pledge and Security Agreement; and
|
|
(c)
|
to ensure that any additional security given pursuant to this Clause 15.10 shall remain in full force and effect until the last date of the Additional Security Period.
|
(f)
|
by construing all references therein to “this Agreement” where the context admits as being references to “this Agreement” as the same is amended and supplemented by this Letter.
|
3
|
Amendments to Finance Documents. With effect on and from the data of this letter each of the Finance Documents (other than the Senior Loan Agreement) shall be, and shall be deemed by this Agreement to have been, amended as follows:
|
(a)
|
the definition of, and references throughout each of the Finance Documents to “this Agreement” the Senior Loan Agreement and any of the other Finance Documents shall be construed as if the same referred to the Sensor Loan rent and those Finance Documents as amended and supplemented by this Letter;
|
(b)
|
by construing references throughout each of the Finance Documents to “this Agreement”, “this Deed”, “hereunder and other like expressions as lithe same referred to such Finance Documents as amended and supplemented by this Letter.
|
4
|
Senior Lean Agreement and Finance Documents. The Borrower hereby agrees with the Lenders that the provisions of the Senior Loan Agreement and the Finance Documents shall be and are hereby re-affirmed and remain in full force and effect.
|
5
|
Representations and Warranties. The Borrower hereby represents and warrants to the Lenders that:
|
(a)
|
the representations and warranties contained in the Senior Loan Agreement are true and correct on the date of this Letter as if all references therein to Agreement” were references to the Senior Loan Agreement as supplemented by this Letter; and
|
(b)
|
this Letter comprises the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms.
|
6
|
Conditions. Our agreement contained in paragraph 2 of this Letter shall be expressly subject to the condition that we shall have received in food and substance as may be approved or required by us on or before the signature hereof:
|
(a)
|
copies of resolutions passed at a meeting of the board of directors of the Borrower evidencing approval of this Letter, the Pledge and Security Agreement and the Control Agreement and authorising appropriate officers or attorneys to execute the same;
|
(b)
|
the original of any power of attorney issued in favour of any person executing this Letter, the Pledge and Security Agreement and the Control Agreement on behalf of the Borrower; and
|
(c)
|
a duly executed original of this Letter, the Pledge and Security Agreement and the Control Agreement;
|
(d)
|
evidence that the relevant UCC statement in respect of the Pledge and Security Agreement has been filed;
|
(e)
|
favourable legal opinions from lawyers appointed by the Agent on such matter
|
|
concerning the laws of the Republic of the Marshall Islands and such other relevant jurisdiction as the Agent may require; and
|
(f)
|
copies of all governmental and other consents, licences, approvals and authorisations as may be necessary to authorise the performance by the Borrower of its obligations under this Letter, the Pledge and Security Agreement and the Control Agreement and the execution, validity and enforceability of this Letter.
|
7
|
Notices. Clause 28 (Notices) of the Senior Loan Agreement shall extend and apply to this Letter as if the same were (mutatis mutandis) herein expressly set forth.
|
8
|
Governing Law. This Letter shall be governed by and construed in accordance with English law and Clause 30 (Law and Jurisdiction) of the Senior Loan Agreement shall extend and apply to this Letter as if the same were (mutatis mutandis) herein expressly set forth.
|
for and oh behalf of
WEALTH MANAGEMENT INC.
|
for and on behalf of
SAMSARA SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
MALVINA SHIPPING COMPANY LIMITED
|
for and on behalf of
ARLETA NAVIGATION COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
BORSARI SHIPPING COMPANY LIMITED
|
for and on behalf of
ONIL SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
FABIANA NAVIGATION COMPANY LIMITED
|
for and on behalf of
CELINE SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
KARMEN SHIPPING COMPANY LIMITED
|
for and on behalf of
THELMA SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
ARGO OWNING COMPANY LIMITED
|
for and on behalf of
KRONOS OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
for and oh behalf of
TETHYS OWNING COMPANY LIMITED.
|
for and on behalf of
SELENE OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
DIONE OWNING COMPANY LIMITED
|
for and on behalf of
URANUS OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
TEMPO MARINE CO.
|
for and on behalf of
STAR RECORD OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
REA OWNING COMPANY LIMITED
|
for and on behalf of
PHOEBE OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
To:
|
DryShips Inc.
Trust Company Complex
Ajeltake Road
Ajeltake Island
Majuro
The Marshall Islands MI 96960
|
|
From:
|
HSH Nordbank AG
Gerhart-Hauptmann-Platz 50
D-20095Hamburg
Germany
|
1
|
Background.
|
(A)
|
By a loan agreement dated 31 March 2006 (as supplemented, amended and restated from time to time, the “Junior Loan Agreement”) and made between (1) DryShips Inc. as borrower (the “Borrower”), (ii) the banks and financial Institutions listed in Pert A of Schedule 1 thereto as lenders (the “Junior Lenders”), (iii) the banks and financial institutions listed in Part B of Schedule 1 thereto as swap banks (together, the “Swap Banks” and each a “Swap Bank”), (iv) ourselves as agent, lead arranger, lead bookrunner and security trustee and (v) Bank of Scotland plc as joint bookrunner, it was agreed that the Junior Lenders would make available to the Borrower a term loan and short-teen credit facilities of (originally) op to US$110,000,000 (the ‘Jailor Loan”) in aggregate.
|
(B)
|
By two ISDA master agreements (each on the 1992 1SDA Master Agreement (Multicurreney-crossborder) form) and each dated 31 March 2006 (the “Junior Master Agreement” and, in the plural, means both of them) made between the Borrower and a Swap Bank. the Borrower has entered into or will enter into certain Designated Transactions (as such term is defined in the said Junior Loan Agreement) pursuant to separate Confirmations (as such term is defined in the said Junior Loan Agreement).
|
(C)
|
By a letter (the “New Letter”) dated 20 April 2012 the Agent:
|
|
(i)
|
notified the Borrower there was a shortfall (the “Shortfall”) at that dine in the security cover required to be maintained pursuant to clause 15.1 of the Junior Loan Agreement; and
|
|
(ii)
|
called on the Borrower, pursuant to clause 15.1 of the Junior Loan Agreement within 14 days of the date of the New Letter, either:
|
|
(1)
|
to provide, or ensure that a third party provides, additional security which, in the opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and which, if it consists of or includes a Security Interest, covers such asset or assets and is documented In such terms as we may, with authorisation from the Majority Lenders, approve or require; or
|
|
(2)
|
prepay In accordance with clause 8 of the Junior Loan Agreement such part (at least) of the Junior Loan as will eliminate the shortfall.
|
(D)
|
Following the Borrower’s non-compliance with the teens of the New Letter and clause 15.1 of the Junior Loan Agreement, by a letter dated 8 May 2012 we reserved the rights of the Creditor Parties under the Junior Loan Agreement and all other Finance Documents.
|
(E)
|
The Borrower Slur has requested and the Lenders agreed to receive certain additional security to rectify the Shortfall.
|
(F)
|
This Agreement sets out the terms and conditions on which the Lenders agree to:
|
|
(i)
|
receive certain additional security to rectify the Shortfall; and
|
|
(ii)
|
the consequential amendments to the Loan Agreement and the other Finance Documents In connection with those matters.
|
2
|
Agreement and amendments to the Junior Loan Agreement. Subject to the satisfaction of the conditions of this Letter and with effect from the date of this Letter, the Junior Loan Agreement shell be amended as follows:
|
(a)
|
by deleting the definition of ‘Shuts Pledge” in clause 1.2 thereof in its entirety;
|
(b)
|
by adding the following new definitions in clause 1.2 thereof:
|
(c)
|
by replacing the words “Shares Pledge” in sub-paragraph (w) in the definition of “Finance Documents” in clause 1.1 thereof with the words “Pledge and Security Agreement”;
|
(d)
|
by adding to the definition of “Finance Documents” In clause 1.1 thereof a new sub-paragraph (x) as follows:
|
|
“(x) the Control Agreement;”,
|
(e)
|
by replacing therein clause 15.10 with the following new clause:
|
|
“15.10 Additional security during the Additional Security Period. The Borrower undertakes with the Lenders: |
|
(a)
|
to execute and deliver on the first date of the Additional Security Period the Pledge and Security Agreement and, to cause Ocean Rig as issuer. to execute and deliver together with the Borrower, the Control Agreement referred to therein in respect of the Required Shares; and
|
|
(b)
|
deliver to the Agent such other documents equivalent to those referred to in paragraphs 3, 4 and 5 of Schedule 5, Part A as the Agent may require in connection with the execution of the Pledge and Security Agreement; and
|
|
(c)
|
to ensure that any additional security given pursuant to this Clause 15.10 shall remain in full force and effect until the last date of the Additional Security Period.
|
|
(f)
|
by construing all references therein to “this Agreement” where the context admits as being references to “this Agreement” as the same is amended and supplemented by this Letter.
|
3
|
Amendments to Finance Documents. With effect on and from the date of this letter each of the Finance Documents (other than the Junior Loan Agreement) shall be, and shall be deemed by this Agreement to have been, amended as follows:
|
(a)
|
the definition of and references throughout each of the Finance Documents to, the Junior Loan Agreement and any of the other Finance Documents shall be construed as if the same referred to the Junior Loan Agreement and those Finance Documents as amended and supplemented by this Letter; and
|
(b)
|
by construing references throughout each of the Finance Documents to “this Agreement”, “this Deed”, “hereunder and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Letter.
|
4
|
Junior Loan Agreement and Finance Documents. The Borrower hereby agrees with the Lenders that the provisions of the Junior Loan Agreement and the Finance Documents shall be and are hereby re-affirmed and remain in full three and effect.
|
5
|
Representations and Warranties. The Borrower hereby represents and warrants to the Lenders that:
|
(a)
|
the representations and warranties contained in the Junior Loan Agreement are true and correct on the date of this Letter as if all references therein to ‘this Agreement” were references to the Junior Loan Agreement as supplemented by this Letter; and
|
(b)
|
this Letter comprises the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms.
|
6
|
Conditions. Our agreement contained in paragraph 2 of this Letter shall be expressly subject to the condition that we shall have received in form and substance as may be approved or required by us on or before the signature hereof:
|
(a)
|
copies of resolutions passed at a meeting of the board of directors of the Borrower evidencing approval of this Letter, the Pledge and Security Agreement and the Control Agreement and authorising appropriate officers or attorneys to execute the same;
|
(b)
|
the original of any power of attorney issued in favour of any person executing this Letter, the Pledge and Security Agreement and the Control Agreement on behalf of the Borrower; and
|
(c)
|
a duly executed original of this Letter, the Pledge and Security Agreement and the Control Agreement;
|
(d)
|
evidence that the relevant UCC statement in respect of the Pledge and Security Agreement has been filed;
|
(e)
|
favourable legal opinions from lawyers appointed by the Agent on such matter concerning the laws of the Republic of the Marshall Islands and such other relevant jurisdiction as the Agent may require; and
|
(f)
|
copies of all governmental and other consents, licences, approvals and authorisations as may be necessary to authorise the performance by the Borrower of its obligations under this Letter, the Pledge and Security Agreement and the Control Agreement and the execution, validity and enforceability of this Letter.
|
7
|
Notices. Clause 28 .(Notices) of the Junior Loan Agreement shall extend arid apply to this Letter as if the same were (mutatis mutandis) herein expressly set forth.
|
8
|
Governing Law. This Letter shall be governed by and construed in accordance with English law and Clause 30 (Law and Jurisdiction) of the Junior Loan Agreement shall extend and apply to this Letter as if the same were (mutatis mutandis) herein expressly set forth.
|
for and oh behalf of
WEALTH MANAGEMENT INC.
|
for and on behalf of
SAMSARA SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
MALVINA SHIPPING COMPANY LIMITED
|
for and on behalf of
ARLETA NAVIGATION COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
BORSARI SHIPPING COMPANY LIMITED
|
for and on behalf of
ONIL SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
FABIANA NAVIGATION COMPANY LIMITED
|
for and on behalf of
CELINE SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
KARMEN SHIPPING COMPANY LIMITED
|
for and on behalf of
THELMA SHIPPING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
ARGO OWNING COMPANY LIMITED
|
for and on behalf of
KRONOS OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
for and oh behalf of
TETHYS OWNING COMPANY LIMITED.
|
for and on behalf of
SELENE OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
DIONE OWNING COMPANY LIMITED
|
for and on behalf of
URANUS OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
TEMPO MARINE CO.
|
for and on behalf of
STAR RECORD OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
|
for and on behalf of
REA OWNING COMPANY LIMITED
|
for and on behalf of
PHOEBE OWNING COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
Dr. Adriano Cefai
5/1 Merchants Street
Valetta VLT 1171
Malta
|
DRYSHIPS INC.
|
||||
By:
|
/s/ Dimitrios Glynos
|
|||
Name: Dimitrios Glynos
|
||||
Title: Attorney-in-Fact
|
||||
Accepted and Agreed to:
|
||||
HSH NORDBANK AG, as Security Trustee
|
||||
By:
|
/s/ Vassiliki Georgopoulos
|
|||
Name: Vassiliki Georgopoulos
|
||||
Title: Attorney-in-Fact
|
||||
HSH NORDBANK AG
By /s/ Vassiliki Georgopoulos
|
Gerhart-Hauptmann-Platz 50
D-20095 Hamburg
Germany
Facsimile: +(49)40 33 33 34 118
Email: gregorios.kondilis@hsh-nordbank.com
Attention: Shipping, Greek Clients
|
Name: Vassiliki Georgopoulos
Title: Attorney-in-Fact
|
|
DRYSHIPS INC.
By /s/ Dimitrios Glynos
|
Athens office
80 Kifissias Avenue
Marousi, Athens – 15125
Greece
Facsimile: +(30)210 809 0585
Email: finance@dryships.com
Attention: Chief Financial Officer
|
Name: Dimitrios Glrynos
Title: Attorney-in-Fact
|
|
OCEAN RIG UDW INC.
By /s/ Savvas Georghiades
|
Cyprus office
10 Skopa Street, Tribune House
2nd Floor, Office 202, C 1075
Nicosia, Cyprus
Facsimile: +(357)227 61542
Email: oceanrig@cytanet.com.cy
Attention: Mr. Savvas Georghiades
|
Name: Savvas Georghiades
Title: Director
|
1
|
To:
|
Ocean Rig UDW Inc.
10 Skopa Street, Tribune House
2nd Floor, Office 202, CY 1075
Nicosia, Cyprus
Attn: [___________________]
|
Name of Authority Signatory
|
Title
|
Specimen Signature
|
Clause
|
Page
|
|
1
|
DEFINITIONS
|
2
|
2
|
REPRESENTATIONS AND WARRANTIES
|
2
|
3
|
AGREEMENT OF THE CREDITOR PARTIES
|
3
|
4
|
CONDITIONS
|
|
5
|
VARIATIONS TO LOAN AGREEMENT AND FINANCE DOCUMENTS
|
5
|
6
|
CONTINUANCE OF LOAN AGREEMENT AND FINANCE DOCUMENTS
|
7
|
7
|
FEES AND EXPENSES
|
7
|
8
|
COMMUNICATIONS
|
7
|
9
|
SUPPLEMENTAL
|
7
|
10
|
LAW AND JURISDICTION
|
8
|
SCHEDULE I LENDERS
|
9
|
|
EXECUTION PAGE
|
10
|
(1)
|
CRETAN TRADERS INC., a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (including its successors) as Borrower;
|
(2)
|
MONTEAGLE SHIPPING SA a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as Existing Guarantor;
|
(3)
|
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule I, as Lenders;
|
(4)
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE acting through its office at Friedrichswall 10, D-30159, Hannover, Germany, as Swap Bank; and
|
(5)
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE acting through its office at Friedrichswall 10, D-30159, Hannover, Germany as Underwriter, Mandated Lead Arranger, Bookrunner, Agent and Security Trustee.
|
(A)
|
By a loan agreement dated 23 July 2008 (as amended and supplemented by three supplemental agreements dated respectively 12 October 2009, 9 September 2011 and 4 January 2012 and two supplemental letters dated respectively 24 July 2009 and 8 February 2010, the "Loan Agreement") made between (i) the Borrower, (ii) the Lenders, (iii)the Swap Bank, (iv) the Underwriter, (v) the Mandated Lead Arranger, (vi) the Bookrunner, (vii) the Agent and (viii) the Security Trustee, the Lenders made available to the Borrower a loan facility of (originally) US$126,400,000 (the "Loan").
|
(B)
|
By the Agency and Trust Agreement entered into pursuant to the Loan Agreement, it was agreed that the Security Trustee would hold the Trust Property on trust for the Lenders.
|
(C)
|
As at the date of this Agreement the amount outstanding by way of principal under the Loan Agreement is US$75,600,000.
|
(D)
|
The Borrower has requested that the Creditor Parties agree to (inter alia) give their consent to an amendment to the minimum security cover requirement specified in Clause 15.1 of the Loan Agreement.
|
(E)
|
The Creditor Parties' consent to the Borrower's request referred to in Recital (D) subject to the following conditions:
|
|
(i)
|
the application of $9,125,000 currently standing, on the date of this Agreement, to the credit of the Cash Collateral Account in the name of the Existing Guarantor towards prepayment of the Loan;
|
|
(ii)
|
50 per cent of any excess earnings of m.vs "RAPALLO" and "WOOLLOOMOOLOO" being either deposited in the Retention Account or applied in prepayment of the Loan (at the Borrower's sole discretion); and
|
|
(iii)
|
the consequential amendments to the Loan Agreement and the other Finance Documents in connection with those matters
|
(F)
|
This Agreement sets out the terms and conditions on which the Creditor Parties agree, with effect on and from the Effective Date, to amend the Loan Agreement.
|
NOW THEREFORE IT IS HEREBY AGREED
|
1
|
DEFINITIONS
|
1.1
|
Words and expressions defined in the Loan Agreement (as hereby amended) and the recitals hereto and not otherwise defined herein shall have the same meanings when used in this Supplemental Agreement.
|
1.2
|
In this Supplemental Agreement the words and expressions specified below shall have the meanings attributed to them below:
|
1.3
|
Where the context so admits words importing the singular number only shall include the plural and vice versa and words importing persons shall include firms and corporations. Clause headings are inserted for convenience of reference only and shall be ignored in construing this Supplemental Agreement. References to Clauses are to clauses of this Supplemental Agreement save as may be otherwise expressly provided in this Supplemental Agreement.
|
2
|
REPRESENTATIONS AND WARRANTIES
|
2.1
|
The Borrower hereby represents and warrants to the Agent, as at the date of this Supplemental Agreement, that the representations and warranties set forth in Clause 10 of the Loan Agreement (updated mutatis mutandis to the date of this Supplemental Agreement) are true and correct as if all references therein to "this Agreement" were references to the Loan Agreement as further amended by this Supplemental Agreement.
|
2.2
|
The Borrower hereby further represents and warrants to the Agent that as at the date of this Supplemental Agreement:
|
(a)
|
it is duly incorporated and validly existing and in good standing under the laws of the Marshall Islands and has full power to enter into and perform its obligations under this Supplemental Agreement and has complied with all statutory and other requirements relative to its business, and does not have an established place of business in any part of the United Kingdom or the United States of America;
|
(b)
|
all necessary governmental or other official consents, authorisations, approvals, licences, consents or waivers for the execution, delivery, performance, validity and/or enforceability of this Supplemental Agreement and all other documents to be executed in connection with the amendments to the Loan Agreement and the other Finance Documents as contemplated hereby have been obtained and will be maintained in full force and effect, from the date of this Supplemental Agreement and so long as any moneys are owing under any of the Finance Documents and while all or any part of the Loan remains outstanding;
|
(c)
|
it has taken all necessary corporate and other action to authorise the execution, delivery and performance of its obligations under this Supplemental Agreement and such other documents to which it is a party and such documents do or will upon execution thereof constitute its valid and binding obligations enforceable in accordance with their respective terms;
|
(d)
|
the execution, delivery and performance of this Supplemental Agreement and all such other documents as contemplated hereby does not and will not, from the date of this Supplemental Agreement and so long as any moneys are owing under any of the Finance Documents and while all or any part of the Commitment remains outstanding, constitute a breach of any contractual restriction or any existing applicable law, regulation, consent or authorisation binding on the Borrower or on any of its property or assets and will not result in the creation or imposition of any security interest, lien, charge or encumbrance (other than under the Finance Documents on any of such property or assets; and
|
(e)
|
it has fully disclosed in writing to the Agent all facts which it knows or which it should reasonably know and which are material for disclosure to the Agent in the context of this Supplemental Agreement and ail information furnished by such Borrower or on its behalf relating to its business and affairs in connection with this Supplemental Agreement was and remains true, correct and complete in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading.
|
3
|
AGREEMENT OF THE CREDITOR PARTIES
|
3.1
|
The Creditor Parties, relying upon each of the representations and warranties set out in Clauses 2.1 and 2.2 of this Supplemental Agreement, hereby agree with the Borrower, subject to and upon the terms and conditions of this Supplemental Agreement and in particular, but without limitation, subject to the fulfilment of the conditions precedent set out in Clause 4:
|
(a)
|
an amendment in the minimum security cover requirement specified in Clause 15.1 of the Loan Agreement in the manner outlined in Clauses 5.1(e);
|
(b)
|
an amendment to the manner of repayment of the Loan as referred to in clause 8 of the Loan Agreement so that the Loan shall be repaid in accordance with Clause 5.1(b) of this Agreement; and
|
(c)
|
the consequential amendments to the Loan Agreement and the other Finance Documents in connection with the matters referred to in paragraphs (a) and (b) above.
|
3.2
|
The Borrower and the Security Parties agree and confirm that the Loan Agreement and the Finance Documents to which each is a party shall remain in full force and effect and the Borrower and each Security Party shall remain liable under the Loan Agreement and the Finance Documents to which each is a party for all obligations and liabilities assumed by it thereunder.
|
3.3
|
The agreement of the Creditor Parties contained in Clause 3.1 shall have effect on and from the Effective Date.
|
4
|
CONDITIONS
|
4.1
|
The agreements of the Creditor Parties contained in Clause 3.1 of this Supplemental Agreement shall all be expressly subject to the condition that the Agent shall have received in form and substance satisfactory to it and its legal advisers on or before the Effective Date:
|
(a)
|
evidence that the persons executing this Supplemental Agreement on behalf of the Borrower are duly authorised to execute the same;
|
(b)
|
an original of this Agreement duly executed by the parties to it and counter-signed and acknowledged by the Security Parties;
|
(c)
|
certificates from an officer of the Borrower and the Existing Guarantor confirming the names of all the directors and shareholders of the Borrower and the Existing Guarantor and having attached thereto true and complete copies of their incorporation and constitutional documents;
|
(d)
|
true and complete copy of the resolutions passed at separate meetings of the sole director or directors, as the case may be, and shareholders of the Borrower and the Existing Guarantor authorising and approving the execution, or acknowledgement in the case of the Guarantor, Roscoe and the Collateral Owner, of this Supplemental Agreement and any other document or action to which each is or is to be a party and authorising its directors or other representatives to execute, or acknowledge, as the case may be, the same on its behalf;
|
(e)
|
the original of any power of attorney issued by the Borrower and the Existing Guarantor pursuant to such resolutions aforesaid;
|
(f)
|
evidence that the Borrower has satisfied the minimum security cover test outlined in clause 15.1 of the Loan Agreement (as those provisions have been amended and supplemented by this Supplemental Agreement);
|
(g)
|
evidence that the amount of $9,125,000 (out of the Cash Collateral Account) has been applied in partial prepayment of Tranche B (and the Existing Guarantor hereby irrevocably and unconditionally authorises the Agent to make such application);
|
(h)
|
favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of the Marshall Islands and such other relevant jurisdictions as the Agent may require;
|
(i)
|
certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Supplemental Agreement (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Agent deems appropriate;
|
(j)
|
evidence that the process agent referred to in clause 30.4 of the Loan Agreement has accepted its appointment as agent for service of process under this Supplemental Agreement; and
|
(k)
|
evidence that the provisions of clause 9.1(d) of the Loan Agreement, as amended and supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement, are complied with both as at the date of this Agreement and the Effective Date.
|
4.2
|
Waiver. The conditions set out in Clause 4.1 are for the sole benefit of the Creditor Parties. The Agent shall be entitled to waive the fulfilment of any of those conditions on such terms as it deems fit.
|
4.3
|
Effective Date Letter. Upon fulfilment or waiver of the conditions in Clause 4.1, the Agent, the Borrower and the Existing Guarantor shall sign a letter confirming that the Effective Date has occurred and such certificate shall be binding on all parties to this Agreement.
|
5
|
VARIATIONS TO LOAN AGREEMENT AND FINANCE DOCUMENTS
|
5.1
|
In consideration of the agreement of the Creditor Parties contained in Clause 3.1 of this Supplemental Agreement, the Borrower hereby agrees with the Creditor Parties that upon satisfaction of the conditions referred to in Clause 4.1, the provisions of the Loan Agreement shall be varied and/or amended and/or supplemented with effect on and from the Effective Date as follows:
|
(a)
|
by adding the following new definitions in clause 1.1 thereof:
|
(b)
|
by deleting clause 2.6 thereof in its entirety;
|
(c)
|
by deleting clauses 8.1 and 8.2 thereof in their entirety and substituting the same with the following new clauses:
|
|
"8.1
|
Amount of repayment instalments. The Borrower shall repay each Tranche (save as otherwise repaid or prepaid) as follows:
|
|
(a)
|
in the case of Tranche A, by 24 equal consecutive three- monthly instalments each in the amount of 830,221.52;
|
|
(b)
|
in the case of Tranche B, by 24 equal consecutive three-monthly repayment instalments and by a balloon instalment as follows:
|
|
(i)
|
in the case of the first repayment instalment to the twenty-fourth repayment instalment (inclusive) in the amount of $1,819,778.48 each; and
|
|
(ii)
|
a balloon instalment in the amount of $2,875,000 (the "Tranche B Balloon Instalment").
|
8.2
|
Repayment Dates. The first repayment instalment in respect of each Tranche referred to in Clause 8.1 shall be repaid on 29 October 2012 and each subsequent repayment instalment shall be repaid at 3-monthly intervals thereafter and the last repayment instalment and together with Tranche B Balloon Instalment shall be repaid on 29 July 2018."
|
(c)
|
by deleting clause 8.10 in its entirety and substituting the same with the following new clause:
|
|
(a)
|
Clause 8.4, shall be applied against Tranche B Balloon Instalment. Upon repayment of Tranche B Balloon Instalment in full, each partial prepayment shall
|
|
(b)
|
Clause 8.8, shall be applied in full repayment of the Loan".
|
(d)
|
by adding a new clause 8.12 thereof as follows:
|
"8.12
|
Excess Earnings". If in respect of any 3-month period (with the first such period commencing on 1 September 2012) during the Security Period, the Agent determines (on the basis of evidence satisfactory to the Agent provided by the Borrower to the Agent in respect of such 3-month period by not later than the date following 30 days after the last day of such 3-month period) that the aggregate daily Earnings of RAPALLO and the Collateral Ship for such period exceed the aggregate of:
|
|
(a)
|
the aggregate expenditure necessarily incurred during such period by Roscoe and the Collateral Owner in operating, insuring, dry-docking, maintaining, repairing and generally trading RAPALLO and the Collateral Ship (including, without limitation, the general and administrative expenses and the maintenance costs); and
|
|
(b)
|
any sums paid by the Borrower in respect of principal on, and interest in respect of, the Loan pursuant to this Agreement which are attributable to that 3-month period,
|
(e)
|
by deleting clause 15.1 thereof in its entirety and substituting the same with the following new clause:
|
|
"15.1
|
Minimum required security cover. Clause 15.2 applies if the Agent notifies the Borrower that:
|
|
(a)
|
the aggregate of (i) the aggregate Market Value of the Ship, RAPALLO and the Collateral Ship and (ii) any amounts standing to the credit of the Retention Account; plus
|
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 15,
|
|
(i)
|
the Effective Date and ending on (inclusive) 31 December 2014, 100 per cent.;
|
|
(ii)
|
1 January 2015 and ending on (inclusive) 31 December 2015, 105 per cent.;
|
|
(iii)
|
1 January 2016 and ending on (inclusive) 31 December 2016, 111 per cent.; and
|
|
(iv)
|
1 January 2017 and at all times thereafter, 125 per cent.
|
5.2
|
Amendments to Finance Documents. With effect on and from the Effective Date each of the Finance Documents other than the Loan Agreement shall be, and shall be deemed by this Agreement to have been, amended as follows:
|
(a)
|
the definition of, and references throughout each of the Finance Documents to, the Loan Agreement and any of the other Finance Documents shall be construed as if the same referred to the Loan Agreement and those Finance Documents as amended and supplemented by this Supplemental Agreement; and
|
(b)
|
by construing references throughout each of the Finance Documents to "this Agreement", "this Deed", "hereunder and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Supplemental Agreement.
|
5.3
|
Finance Documents to remain in full force and effect. The Finance Documents shall remain in full force and effect as amended and supplemented by:
|
(a)
|
the amendments to the Finance Documents contained or referred to in Clauses 5.1 and 5.2; and
|
(b)
|
such further or consequential modifications as may be necessary to make the same consistent with, and to give full effect to, the terms of this Supplemental Agreement.
|
6
|
CONTINUANCE OF LOAN AGREEMENT AND FINANCE DOCUMENTS
|
6.1
|
Save for the alterations to the Loan Agreement and the other Finance Documents made or to be made pursuant to this Supplemental Agreement and such further modifications (if any) thereto as may be necessary to make the same consistent with the terms of this Supplemental Agreement, the Loan Agreement shall remain in full force and effect and the security constituted by the other Finance Documents shall continue and remain valid and enforceable.
|
7
|
FEES AND EXPENSES
|
7.1
|
Handling Fee. The Borrower shall pay to the Agent on the date of this Agreement a non-refundable handling fee of $30,000 to be distributed between the Lenders pro rate to their respective Contribution.
|
7.2
|
Fees and expenses. The provisions of clause 20 (fees and expenses) of the Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary amendments.
|
8
|
COMMUNICATIONS
|
8.1
|
General. The provisions of clause 28 (notices) of the Loan Agreement, as amended and supplemented by this Agreement, shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.
|
9
|
SUPPLEMENTAL
|
9.1
|
Counterparts. This Agreement may be executed in any number of counterparts.
|
9.2
|
Third Party rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
|
10
|
LAW AND JURISDICTION
|
10.1
|
Governing law. This Agreement and any non-contractual obligations arising out of it, shall be governed by and construed in accordance with English law.
|
10.2
|
Incorporation of the Loan Agreement provisions. The provisions of clause 30 (law and jurisdiction) of the Loan Agreement, as amended and supplemented by this Agreement, shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary medications.
|
Lender
|
Lending Office
|
Norddeutsche Landesbank Girozentrale
|
Friedrichswall 10
D-30159
Hannover
Germany
|
BORROWER
|
||
Signed by DIMITRIOS GLYNOS
|
)
|
/s/Dimitrios Glynos
|
for and on behalf of
|
)
|
|
CRETAN TRADERS INC.
Witness to the signature:
Eugenia Th. Voulika
Attorney-at-law
52, Ag. Konstantinou Street – 151 24 Marousi
Athens, Greece
Tel.: +30 210 6140580 – Fax: + 30 210 614 0267
|
)
|
|
EXISTING GUARANTOR
|
||
SIGNED by
|
)
|
|
for and on behalf of DIMITRIOS GLYNOS
|
)
|
/s/Dimitrios Glynos
|
MONTEAGLE SHIPPING SA
Witness to the signature:
Eugenia Th. Voulika
Attorney-at-law
52, Ag. Konstantinou Street – 151 24 Marousi
Athens, Greece
Tel.: +30 210 6140580 – Fax: + 30 210 614 0267
|
)
|
|
LENDERS
|
||
SIGNED by of VASSILIKI GEORGOPOULOS
|
)
|
/s/ Vassiliki Georgopoulos
|
for and on behalf of
|
)
|
|
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
)
)
|
|
SWAP BANK
|
||
SIGNED by VASSILIKI GEORGOPOULOS
|
)
|
/s/ Vassiliki Georgopoulos
|
for and on behalf of
|
)
|
|
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
)
)
|
|
UNDERWRITER
|
||
SIGNED by VASSILIKI GEORGOPOULOS
|
)
|
/s/ Vassiliki Georgopoulos
|
for and on behalf of
|
)
|
|
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
)
)
|
|
MANDATED LEAD ARRANGER
|
||
SIGNED by VASSILIKI GEORGOPOULOS
|
)
|
/s/ Vassiliki Georgopoulos
|
for and on behalf of
|
)
|
|
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
)
)
|
BOOKRUNNER
|
|||
SIGNED by VASSILIKI GEORGOPOULOS
|
)
|
/s/ Vassiliki Georgopoulos
|
|
for and on behalf of
|
)
|
||
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
)
)
|
||
AGENT
|
|||
SIGNED by VASSILIKI GEORGOPOULOS
|
)
|
/s/ Vassiliki Georgopoulos
|
|
for and on behalf of
|
)
|
||
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
)
)
|
||
SECURITY TRUSTEE
|
|||
SIGNED by VASSILIKI GEORGOPOULOS
|
)
|
/s/ Vassiliki Georgopoulos
|
|
for and on behalf of
|
)
|
||
NORDDEUTSCHE LANDESBANK
GIROZENTRALE
|
)
)
|
||
Witness to all the
above signatures (other than the Borrower's and the Existing Guarantor's)
|
|||
Name: ERICA LACOMEE
|
/s/ Erica Lacombe
|
||
Address:
|
WATSON, FARLEY & WILLIAMS
89 AKTI MIAOULI
PIRAEUS 18938 GREECE
|
||
/s/ Dimitrios Glynos
|
|
Dimitrios Glynos
|
|
for and on behalf of
DRYSHIPS INC.
|
|
/s/ Dimitrios Glynos
|
|
Dimitrios Glynos
|
|
for and on behalf of
ROSCOE MARINE LTD.
|
|
/s/ Dimitrios Glynos
|
|
Dimitrios Glynos
|
|
for and on behalf of
PERGAMOS OWNING
COMPANY LIMITED
|
|
/s/ Dr. Adriano Cefai
|
|
Dr. Adriano Cefai
|
|
for and on behalf of
TMS BULKERS LTD.
|
LOAN AGREEMENT
|
INDEX | ||
Clause | Page | |
1
|
INTERPRETATION
|
1
|
2
|
FACILITY
|
18
|
3
|
POSITION OF THE LENDERS AND SWAP BANK
|
18
|
4
|
DRAWDOWN
|
19
|
5
|
INTEREST
|
20
|
6
|
INTEREST PERIODS
|
22
|
7
|
DEFAULT INTEREST
|
22
|
8
|
REPAYMENT AND PREPAYMENT
|
23
|
9
|
CONDITIONS PRECEDENT
|
26
|
10
|
REPRESENTATIONS AND WARRANTIES
|
27
|
11
|
GENERAL UNDERTAKINGS
|
30
|
12
|
CORPORATE UNDERTAKINGS
|
34
|
13
|
INSURANCE
|
35
|
14
|
SHIP COVENANTS
|
40
|
15
|
SECURITY COVER
|
44
|
16
|
PAYMENTS AND CALCULATIONS
|
46
|
17
|
APPLICATION OF RECEIPTS
|
47
|
18
|
APPLICATION OF EARNINGS; SWAP PAYMENTS
|
48
|
19
|
EVENTS OF DEFAULT
|
50
|
20
|
FEES AND EXPENSES
|
55
|
21
|
INDEMNITIES
|
56
|
22
|
NO SET-OFF OR TAX DEDUCTION
|
59
|
23
|
ILLEGALITY, ETC
|
60
|
24
|
INCREASED COSTS
|
61
|
25
|
SET-OFF
|
62
|
26
|
TRANSFERS AND CHANGES IN LENDING OFFICES
|
63
|
27
|
VARIATIONS AND WAIVERS
|
66
|
|
28
|
NOTICES
|
67
|
29
|
JOINT AND SEVERAL LIABILITY
|
69
|
30
|
SUPPLEMENTAL
|
70
|
31
|
LAW AND JURISDICTION
|
70
|
SCHEDULE 1 LENDERS AND COMMITMENTS
|
72
|
|
SCHEDULE 2 DRAWDOWN NOTICE
|
73
|
|
SCHEDULE 3 CONDITION PRECEDENT DOCUMENTS
|
74
|
|
SCHEDULE 4 MANDATORY COST FORMULA
|
77
|
|
SCHEDULE 5 DESIGNATION NOTICE
|
79
|
|
SCHEDULE 6 TRANSFER CERTIFICATE
|
80
|
|
SCHEDULE 8 FORM OF COMPLIANCE CERTIFICATE
|
84
|
|
EXECUTION PAGES
|
85
|
(1)
|
AMATHUS OWNING COMPANY LIMITED, SYMI OWNERS INC. and KALYMNOS OWNERS INC. each a corporation registered in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH96960 as joint and several Borrowers;
|
(2)
|
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1, as Lenders;
|
(3)
|
HSH NORDBANK AG acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as Agent;
|
(4)
|
HSH NORDBANK AG acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as Mandated Lead Arranger;
|
(5)
|
HSH NORDBANK AG acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, as Security Trustee; and
|
(6)
|
HSH NORDBANK AG acting through its office at Martensdamm 6, D-24103 Kiel, Germany, as Swap Bank.
|
(A)
|
The Lenders have agreed to make available to the Borrowers a term loan facility of up to US$87,653,740 in three tranches as follows:
|
|
(i)
|
a tranche in an amount of up to the lesser of (a) US$20,491,000 and (b) 62 per cent. of the Initial Market Value (determined pursuant to paragraph 4 of Part B, Schedule 3) of Ship A (as defined below);
|
|
(ii)
|
a tranche in an amount of up to the lesser of (a) US$33,581,370 and (b) 62 per cent. of the Initial Market Value (determined pursuant to paragraph 4 of Part B, Schedule 3) of Ship B (as defined below); and
|
|
(iii)
|
a tranche in an amount of up to the lesser of (a) US$33,581,370 and (b) 62 per cent. of the Initial Market Value (determined pursuant to paragraph 4 of Part B, Schedule 3) of Ship C (as defined below).
|
(B)
|
The Swap Bank has agreed to enter into interest rate swap transactions with the Borrowers from time to time to hedge the Borrowers' exposure under this Agreement to interest rate fluctuations.
|
(C)
|
The Lenders and the Swap Bank have agreed to share pari passu in the security to be granted to the Security Trustee pursuant to this Agreement.
|
1
|
INTERPRETATION
|
1.1
|
Definitions. Subject to Clause 1.5, in this Agreement:
|
|
(a)
|
30 June 2013 (or such later date as the Agent may, with the authorisation of the Lenders, agree with the Borrowers); or
|
|
(b)
|
if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated;
|
|
(a)
|
it is entered into by the Borrowers pursuant to the Master Agreement with the Swap Bank which, at the time the Transaction is entered into, is also a Lender;
|
|
(b)
|
its purpose is the hedging of the Borrowers' exposure under this Agreement to fluctuations in LIBOR arising from the funding of the Loan (or any part thereof) for a period expiring no later than the final Repayment Date; and
|
|
(c)
|
it is designated by the Agent, by delivery by the Borrowers to the Agent of a notice of designation in the form set out in Schedule 5, as a Designated Transaction for the purposes of the Finance Documents;
|
|
(a)
|
except to the extent that they fall within paragraph (b):
|
|
(i)
|
all freight, hire and passage moneys;
|
|
(ii)
|
compensation payable to that Borrower or the Security Trustee in the event of requisition of the Ship owned by it for hire;
|
|
(iii)
|
remuneration for salvage and towage services;
|
|
(iv)
|
demurrage and detention moneys;
|
|
(v)
|
damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and
|
|
(vi)
|
all moneys which are at any time payable under any Insurances in respect of loss of hire; and
|
|
(B)
|
if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship;
|
|
(a)
|
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
|
(b)
|
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,
|
|
(a)
|
any release of Environmentally Sensitive Material from a Ship; or
|
|
(b)
|
any incident in which Environmentally Sensitive Material is released from a vessel other than a Ship and which involves a collision between that Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship and/or the Borrower which is the owner thereof and/or any operator or manager of that Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
|
(c)
|
any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship and in connection with which a Ship is actually or
|
|
(a)
|
this Agreement;
|
|
(b)
|
the Master Agreement;
|
|
(c)
|
the Master Agreement Assignment;
|
|
(d)
|
the Corporate Guarantee;
|
|
(e)
|
the Agency and Trust Agreement;
|
|
(f)
|
the General Assignments;
|
|
(g)
|
the Mortgages;
|
|
(h)
|
the Deeds of Covenant;
|
|
(i)
|
the Account Pledges;
|
|
(j)
|
the Initial Charter Assignments;
|
|
(k)
|
any Charterparty Assignments;
|
|
(l)
|
the Approved Manager's Undertaking; and
|
|
(m)
|
any other document (whether creating a Security Interest or not) which is executed at any time by any Borrower, the Corporate Guarantor, the Approved Manager or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the other documents referred to in this definition and, in the singular, means any of them;
|
|
(a)
|
for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;
|
|
(b)
|
under any loan stock, bond, note or other security issued by the debtor;
|
|
(c)
|
under any acceptance credit, guarantee or letter of credit facility made available to the debtor;
|
|
(d)
|
under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;
|
|
(e)
|
under any foreign exchange transaction, interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount;
|
|
(f)
|
under receivables sold or discounted (other than any receivables to the extent that they are sold on a non-recourse basis); or
|
|
(g)
|
under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within (a) to (e) if the references to the debtor referred to the other person;
|
|
(a)
|
Ship A, the time charterparty dated 14 September 2011 made between Borrower A and the Charterer for a period of at least 11 months (with a charterer's option to extend) at a daily charter hire rate $13,150;
|
|
(b)
|
Ship B, a time charterparty to be made between Borrower B and an Approved Charterer, on or prior to the Delivery Date of Ship B, for a period of at least 12 months on terms and conditions acceptable to the Agent; and
|
|
(c)
|
Ship C, a time charterparty to be made between Borrower C and an Approved Charterer, on or prior to the Delivery Date of Ship C, for a period of at least 12 months on terms and conditions acceptable to the Agent;
|
|
(a)
|
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, its Earnings or otherwise in relation to it whether before, on or after the date of this Agreement; and
|
|
(b)
|
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium;
|
|
(a)
|
the rate per annum equal to the offered quotation for deposits in Dollars for a period equal to, or as near as possible equal to, the relevant Interest Period which appears on Reuters BBA Page LIBOR 01 at or about 11.00 a.m. (London time) on the Quotation Date for that Interest Period (and, for the purposes of this Agreement, "BBA Page LIBOR 01" means that Reuters' page or such other page as may replace that page on that service for the purpose of displaying rates comparable to that rate or on such other service as may be nominated by the British Bankers' Association as the information vendor for the purpose of displaying British Bankers' Association Interest Settlement Rates for Dollars); or
|
|
(b)
|
if no rate is quoted on BBA Page LIBOR 01, the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards, if necessary, to the
|
|
(a)
|
before a Tranche has been advanced, Lenders whose Commitments total 66.66 per cent. of the Total Commitments; and
|
|
(b)
|
after a Tranche has been advanced, Lenders whose Contributions total 66.66 per cent. of the Loan;
|
|
(a)
|
the business, property, assets, liabilities, operations or condition (financial or otherwise) of a Borrower and/or any Security Party taken as a whole;
|
|
(b)
|
the ability of a Borrower and/or any Security Party to (i) perform any of its obligations or (ii) discharge any of its liabilities, under any Finance Document as they fall due; or
|
|
(c)
|
the validity or enforceability of any Finance Document;
|
|
(a)
|
Security Interests created by the Finance Documents;
|
|
(b)
|
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
|
(c)
|
liens for salvage;
|
|
(d)
|
liens arising by operation of law for not more than 2 months' prepaid hire under any charter in relation to a Ship not prohibited by this Agreement;
|
|
(e)
|
liens for master's disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the trading, chartering, operation, repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the relevant Borrower in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 14.13(g);
|
|
(f)
|
any Security Interest created in favour of a plaintiff or defendant in any action of the court or tribunal before whom such action is brought as security for costs and expenses while a Borrower is prosecuting or defending such action in good faith by appropriate steps; and
|
|
|
|
|
(g)
|
Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made;
|
|
(a)
|
any Finance Document;
|
|
(b)
|
any policy or contract of insurance contemplated by or referred to in Clause 13or any other provision of this Agreement or another Finance Document;
|
|
(c)
|
any other document contemplated by or referred to in any Finance Document; and
|
|
(d)
|
any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c);
|
|
(a)
|
England and Wales;
|
|
(b)
|
the country under the laws of which the company is incorporated or formed;
|
|
(c)
|
a country in which the company has the centre of its main interests or which the company's central management and control is or has recently been exercised;
|
|
(d)
|
a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax;
|
|
(e)
|
a country in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company maintains a branch or permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and
|
|
(f)
|
a country the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company, whether as a main or territorial or ancillary proceedings, or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c).;
|
|
(a)
|
any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or
|
|
(b)
|
any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a),
|
|
(a)
|
a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;
|
|
(b)
|
the rights of a plaintiff under an action in rem in which the vessel concerned has been arrested or a writ has been issued or similar step taken; and
|
|
(c)
|
any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A; but paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution;
|
|
(a)
|
all amounts which have become due for payment by a Borrower or any Security Party under the Finance Documents have been paid;
|
|
(b)
|
no amount is owing or has accrued (without yet having become due for payment) under any Finance Document;
|
|
(c)
|
neither any Borrower nor any Security Party has any future or contingent liability under Clauses 20, 21 or 22 or any other provision of this Agreement or another Finance Document; and
|
|
(d)
|
the Agent, the Mandated Lead Arranger, the Security Trustee and the Majority Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of a Borrower or a Security Party or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document;
|
|
(a)
|
Ship A, together, CSTC and Hudong; and
|
|
(b)
|
each of Ship B and Ship C, together, CSTC and Jiangnan,
|
|
(a)
|
Ship A, the shipbuilding contract dated 5 March 2010 and made between the relevant Seller and Borrower A as buyer for the construction by Hudong of Ship A and its purchase by Borrower A, as the same has been supplemented and amended from time to time;
|
|
(b)
|
Ship B, the shipbuilding contract dated 11 April 2011 and made between the relevant Seller and Borrower B as buyer for the construction by Jiangnan of Ship B and its purchase by Borrower B, as the same is supplemented and amended from time to time;
|
|
(c)
|
Ship C, the shipbuilding contract dated 11 April 2011 and made between the relevant Seller and Borrower C as buyer for the construction by Jiangnan of Ship C and its purchase by Borrower C, as the same is supplemented and amended from time to time,
|
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Ship;
|
|
(b)
|
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority unless it is within 1 month from the date of such occurrence redelivered to the full control of the Borrower owning that Ship (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 1 month redelivered to the Borrowers full control;
|
|
(c)
|
any condemnation of that Ship by any tribunal or by any person or person claiming to be a tribunal; and
|
|
(d)
|
any arrest, capture, seizure, confiscation or detention of that Ship (including any hijacking or theft) unless it is within 1 month redelivered to the full control of the Borrower owning that Ship;
|
|
(a)
|
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earliest of:
|
|
(i)
|
the date on which a notice of abandonment is given to the insurers; and
|
|
(ii)
|
the date of any compromise, arrangement or agreement made by or on behalf of the Borrower owning that Ship with that Ship's insurers in which the insurers agree to treat the Ship as a total loss; and
|
|
(c)
|
in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred;
|
|
(a)
|
Ship A, an amount of up to the lesser of (i) $20,941,000 and (ii) 62 per cent. of the Initial Market Value of Ship A ("First Tranche");
|
|
(a)
|
Ship B, an amount of up to the lesser of (i) $33,581,370 and (ii) 62 per cent. of the Initial Market Value of Ship B ("Second Tranche"); and
|
|
(c)
|
Ship C, an amount of up to the lesser of (i) $33,581,370 and (ii) 62 per cent. of the Initial Market Value of Ship C ("Third Tranche"),
|
1.2
|
Construction of certain terms. In this Agreement:
|
1.3
|
Meaning of "month". A period of one or more "months" ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started ("the numerically corresponding day"), but:
|
(a)
|
on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or
|
(b)
|
on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,
|
1.4
|
Meaning of "subsidiary". A company (S) is a subsidiary of another company (P) if:
|
|
(a)
|
a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P; or
|
|
(b)
|
P has direct or indirect control over a majority of the voting rights attaching to the issued shares of S; or
|
|
(c)
|
P has the direct or indirect power to appoint or remove a majority of the directors of S; or
|
|
(d)
|
P otherwise has the direct or indirect power to ensure that the affairs of S are conducted in accordance with the wishes of P,
|
1.5
|
General Interpretation. In this Agreement:
|
(a)
|
references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;
|
(b)
|
references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise;
|
(c)
|
words denoting the singular number shall include the plural and vice versa; and
|
(d)
|
Clauses 1.1 to 1.5 apply unless the contrary intention appears.
|
1.6
|
Headings. In interpreting a Finance Document or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall be entirely disregarded.
|
2
|
FACILITY
|
2.1
|
Amount of facility. Subject to the other provisions of this Agreement, the Lenders shall make available to the Borrowers a term loan facility not exceeding in aggregate of $87,653,740, in three Tranches.
|
2.2
|
Lenders' participations in Tranches. Subject to the other provisions of this Agreement, each Lender shall participate in each Tranche as follows in the proportion which, as at the relevant Drawdown Date, its Commitment bears to the Total Commitments.
|
2.3
|
Purpose of Tranche. The Borrowers undertake with each Creditor Party to use each Tranche only for the purpose stated in the preamble to this Agreement.
|
2.4
|
Reduction of Total Commitments. The Borrowers hereby acknowledge that:
|
(a)
|
until HSH Nordbank AG ("HSH") transfers (subject to and in accordance with the applicable provisions of Clause 26) 50 per cent. of the Total Commitments (or, as the case may be, a combination of a part of the Total Commitments and part of its Contribution) ("Transferable Commitment") to CDB or any other bank or financial institution ("Successful Syndication"):
|
|
(i)
|
may only draw down the First Tranche in the maximum principal amount of $20,491,000; and
|
|
(ii)
|
the reference to Total Commitments in this Agreement and the other Finance Documents shall be construed to mean $20,491,000;
|
(b)
|
they shall, as from the date of this Agreement, assist HSH to achieve a Successful Syndication in order to permit the Borrowers to draw down the Second Tranche and the Third Tranche and to increase the maximum amount of the Total Commitments to $87,653,740; and
|
(c)
|
the transfer of the Transferable Commitment shall result in the HSH's Contribution in the First Tranche being equal to 50 per cent. of that Tranche and HSH's Commitment in each of the Second Tranche and Third Tranche, being reduced to 50 per cent. of the Total Commitments.
|
3
|
POSITION OF THE LENDERS AND SWAP BANK
|
3.1
|
Interests several. The rights of the Lenders and of the Swap Bank under this Agreement and under the Master Agreement are several.
|
3.2
|
Individual right of action. Each Lender and the Swap Bank shall be entitled to sue for any amount which has become due and payable by the Borrowers to it under this Agreement or under the Master Agreement without joining the Agent, the Security Trustee, any other Lender or the Swap Bank as additional parties in the proceedings.
|
3.3
|
Proceedings requiring Majority Lender consent. Except as provided in Clause 3.2, neither Lender nor the Swap Bank may commence proceedings against the Borrowers or
|
3.4
|
Obligations several. The obligations of the Lenders under this Agreement and of the Swap Bank under the Master Agreement are several; and a failure of a Lender to perform its obligations under this Agreement or a failure of the Swap Bank to perform its obligations under the Master Agreement shall not result in:
|
(a)
|
the obligations of the other Lenders or the Swap Bank being increased; nor
|
(b)
|
the Borrower, any Security Party, any other Lender or the Swap Bank being discharged (in whole or in part) from its obligations under any Finance Document or under the Master Agreement,
|
4
|
DRAWDOWN
|
4.1
|
Request for a Tranche. Subject to the following conditions, the Borrowers may request a Tranche to be advanced by ensuring that the Agent receives a completed Drawdown Notice not later than 11.00 a.m. (Hamburg time) 3 Business Days prior to the relevant Drawdown Date.
|
4.2
|
Availability. The conditions referred to in Clause 4.1 are that:
|
(a)
|
a Drawdown Date has to be a Business Day during the Availability Period;
|
(b)
|
each Tranche shall not exceed, in the case of the:
|
|
(i)
|
First Tranche, an amount of up to the lesser of:
|
|
(A)
|
$20,491,000; and
|
|
(B)
|
62 per cent. of the Initial Market Value of Ship A;
|
|
(ii)
|
Second Tranche, an amount of up to the lesser of:
|
|
(A)
|
$33,581,570; and
|
|
(B)
|
62 per cent. of the Initial Market Value of Ship B;
|
|
(iii)
|
Third Tranche, an amount of up to the lesser of:
|
|
(A)
|
$33,581,570; and
|
|
(B)
|
62 per cent. of the Initial Market Value of Ship C;
|
(c)
|
Subject to Clause 9 and the other provisions of this Agreement, the Second Tranche and the Third Tranche shall be made available to the Borrowers subject to the occurrence of the following:
|
|
(i)
|
the drawdown of the First Tranche; and
|
|
(ii)
|
the completion of a Successful Syndication pursuant to and in compliance with the provisions of Clause 2.4; and
|
(d)
|
the aggregate amount of the Tranches shall not exceed the Total Commitments.
|
4.3
|
Notification to Lenders of receipt of a Drawdown Notice. The Agent shall promptly notify the Lenders that it has received a Drawdown Notice and shall inform each Lender of:
|
(a)
|
the amount of the Tranche to which that Drawdown Notice relates and the relevant Drawdown Date;
|
(b)
|
the amount of that Lender's participation in that Tranche; and
|
(c)
|
the duration of the first Interest Period.
|
4.4
|
Drawdown Notice irrevocable. Each Drawdown Notice must be duly signed by an authorised signatory of each Borrower; and once served, it cannot be revoked without the prior consent of the Agent, acting on the authority of the Majority Lenders.
|
4.5
|
Lenders to make available Contributions. Subject to the provisions of this Agreement, each Lender shall, on and with value on each Drawdown Date, make available to the Agent for the account of the Borrowers the amount due from that Lender on that Drawdown Date under Clause 2.2.
|
4.6
|
Disbursement of Tranche. Subject to the provisions of this Agreement, the Agent shall on each Drawdown Date pay to the Borrowers the amounts which the Agent receives from the Lenders under Clause4.5; and that payment to the Borrowers shall be made:
|
(a)
|
to the account which the Borrowers specify in the relevant Drawdown Notice; and
|
(b)
|
in the like funds as the Agent received the payments from the Lenders.
|
5
|
INTEREST
|
5.1
|
Payment of normal interest. Subject to the provisions of this Agreement, interest on each Tranche in respect of each Interest Period relative to that Tranche shall be paid by the Borrowers on the last day of that Interest Period.
|
5.2
|
Normal rate of interest. Subject to the provisions of this Agreement, the rate of interest on each Tranche in respect of an Interest Period relative to that Tranche shall be the aggregate of (i) the Margin, (ii) the Mandatory Cost (if any), (iii) LIBOR for that Interest Period and (iv) if a Lender (the "Applicable Lender") notifies the Agent at least 1 Business Day before the start of that Interest Period that its Cost of Funding exceeds LIBOR on the Quotation Date for that Interest Period, additionally in respect of that Applicable Lender's Contribution, the LIBOR Correction Rate applicable to that Applicable Lender for that Interest Period.
|
5.3
|
Payment of accrued interest. In the case of an Interest Period of longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest Period.
|
5.4
|
Notification of Interest Periods and rates of normal interest. The Agent shall notify the Borrowers and each Lender of:
|
(a)
|
each rate of interest; and
|
(b)
|
the duration of each Interest Period,
|
5.5
|
Obligation of Reference Bank to quote. The Reference Bank shall use all reasonable efforts to supply the quotation required of it for the purposes of fixing a rate of interest under this Agreement unless the Reference Bank ceases to be a Lender pursuant to Clause 26.17.
|
5.6
|
Absence of quotations by Reference Bank. If the Reference Bank fails to supply a quotation, the relevant rate of interest shall be set in accordance with the following provisions of this Clause 5.
|
5.7
|
Market disruption. The following provisions of this Clause 5 apply if:
|
(a)
|
no rate is quoted on BBA Page LIBOR 01 and the Reference Bank does not, before 1.00 p.m. (London time) on the Quotation Date for an Interest Period, provide quotation to the Agent in order to fix LIBOR; or
|
(b)
|
at least 1 Business Day before the start of an Interest Period, the Agent is notified by a Lender (the "Affected Lender") that for any reason it is unable to obtain Dollars in the London Interbank Market in order to fund its Contribution (or any part of it) during the Interest Period.
|
5.8
|
Notification of market disruption. The Agent shall promptly notify the Borrowers and each of the Lenders and the Swap Bank stating the circumstances falling within Clause 5.7 which have caused its notice to be given.
|
5.9
|
Suspension of drawdown. If the Agent's notice under Clause 5.8 is served before a Tranche is advanced the Affected Lender's obligation to participate in that Tranche, shall be suspended while the circumstances referred to in the Agent's notice continue.
|
5.10
|
Negotiation of alternative rate of interest. If the Agent's notice under Clause 5.8 is served after a Tranche is advanced, the Borrowers, the Agent, the Lenders or (as the case may be) the Affected Lender and the Swap Bank shall use reasonable endeavours to agree, within 30 days after the date on which the Agent serves its notice under Clause 5.8 (the "Negotiation Period"), an alternative interest rate or (as the case may be) an alternative basis for the Lenders or (as the case may be) the Affected Lender to fund or continue to fund their or its Contribution during the Interest Period concerned.
|
5.11
|
Application of agreed alternative rate of interest. Any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed.
|
5.12
|
Alternative rate of interest in absence of agreement. If an alternative interest rate or alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an interest period and interest rate representing the cost of funding of the Lenders or (as the case may be) the Affected Lender in Dollars or in any available currency of their or its Contribution plus the Margin and the Mandatory Cost (if any); and the procedure provided for by this Clause5.122 shall be repeated if the relevant circumstances are continuing at the end of the interest period so set by the Agent.
|
5.13
|
Notice of prepayment. If the Borrowers do not agree with an interest rate set by the Agent under Clause 5.12, the Borrowers may give the Agent not less than 10 Business Days' notice of their intention to prepay the Loan at the end of the interest period set by the Agent.
|
5.14
|
Prepayment; termination of Commitments. A notice under Clause 5.13 shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected Lender of the Borrowers' notice of intended prepayment; and:
|
(a)
|
on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and
|
(b)
|
on the last Business Day of the interest period set by the Agent, the Borrowers shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin and the Mandatory Cost (if any).
|
5.15
|
Application of prepayment. The provisions of Clause 8 shall apply in relation to the prepayment.
|
6
|
INTEREST PERIODS
|
6.1
|
Commencement of Interest Periods. The first Interest Period applicable to a Tranche shall commence on the Drawdown Date in respect of that Tranche and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
|
6.2
|
Duration of normal Interest Periods. Subject to Clauses6.3 and6.4, each Interest Period in respect of each Tranche shall be:
|
(a)
|
3, 6 or 12 months as notified by the Borrowers to the Agent not later than 11.00 a.m. (Hamburg time) 3 Business Days before the commencement of the Interest Period in respect of that Tranche;
|
(b)
|
3 months, if the Borrowers fail to notify the Agent by the time specified in paragraph (a); or
|
(c)
|
such other period as the Agent may, with the authorisation of the Majority Lenders, agree with the Borrowers.
|
6.3
|
Duration of Interest Periods for Instalments. In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period in respect of the Tranche to which that Repayment Date relates shall end on that Repayment Date.
|
6.4
|
Non-availability of matching deposits for Interest Period selected. If, after the Borrowers have selected and the Lenders have agreed an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (Hamburg time) on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences, the Interest Period shall be of 3 months.
|
7
|
DEFAULT INTEREST
|
7.1
|
Payment of default interest on overdue amounts. The Borrowers shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by the Borrowers under any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant date, that is:
|
(a)
|
the date on which the Finance Documents provide that such amount is due for payment; or
|
(b)
|
if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or
|
(c)
|
if such amount has become immediately due and payable under Clause 19.4, the date on which it became immediately due and payable.
|
7.2
|
Default rate of interest. Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be 2 per cent. above:
|
(a)
|
in the case of an overdue amount of principal, the higher of the rates set out at Clauses 7.3(a) and 7.3(b); or
|
(b)
|
in the case of any other overdue amount, the rate set out at Clause 7.3(b).
|
7.3
|
Calculation of default rate of interest. The rates referred to in Clause 7.2 are:
|
(a)
|
the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period applicable to it);
|
(b)
|
the aggregate of the Margin and the Mandatory Cost (if any) plus, in respect of successive periods of any duration (including at call) up to 3 months which the Agent may select from time to time:
|
|
(i)
|
LIBOR; or
|
|
(ii)
|
if the Agent (after consultation with the Reference Bank) determines that Dollar deposits for any such period are not being made available to the Reference Bank by leading banks in the London Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Bank from such other sources as the Agent (after consultation with the Reference Bank) may from time to time determine.
|
7.4
|
Notification of interest periods and default rates. The Agent shall promptly notify the Lenders and the Borrowers of each interest rate determined by the Agent under Clause 7.3 and of each period selected by the Agent for the purposes of paragraph 7.3(b) of that Clause; but this shall not be taken to imply that the Borrowers are liable to pay such interest only with effect from the date of the Agent's notification.
|
7.5
|
Payment of accrued default interest. Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.
|
7.6
|
Compounding of default interest. Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded.
|
7.7
|
Application to Master Agreement. For the avoidance of doubt, this Clause 7 does not apply to any amount payable under the Master Agreement in respect of any continuing Transaction as to which section 2(e) (Default Interest and Compensation) of the Master Agreement shall apply.
|
8
|
REPAYMENT AND PREPAYMENT
|
8.1
|
Amount of Instalments. The Borrowers shall repay each Tranche by:
|
|
(i)
|
a total number of X equal consecutive quarterly instalments, each in an amount of Y (each a "Repayment Instalment" and, together, the "Repayment Instalments"); and
|
|
(ii)
|
a balloon instalment in an amount equal to Z (each a "Balloon Instalment" and, together, the "Balloon Instalments"),
|
|
(i)
|
in the case of the First Tranche, $20,491,000;
|
|
(ii)
|
in the case of the Second Tranche, $33,581,370; and
|
|
(iii)
|
in the case of the Third Tranche, $33,581,370,
|
|
(a)
|
in the case of the First Tranche, (1) the total number of months falling between the Drawdown Date of that Tranche and the earlier of (i) the date falling on the eighth anniversary of that Drawdown Date and (ii) the Final Maturity Date by (2) 3; and
|
|
(b)
|
in the case of each of the Second Tranche and the Third Tranche, (1) the total number of months falling between the Drawdown Date of that Tranche and the Final Maturity Date by (2) 3;
|
8.2
|
Repayment Dates. The first Repayment Instalment in respect of each Tranche shall be repaid on the date falling 3 months after the Drawdown Date in respect of that Tranche, each subsequent Repayment Instalment shall be repaid at three-monthly intervals thereafter and the last Repayment Instalment, shall be repaid together with the relevant Balloon Instalment, on the earlier of (i) the date falling on the eighth anniversary of the Drawdown Date in respect of the First Tranche and (ii) the Final Maturity Date.
|
8.3
|
Final Repayment Date. On the final Repayment Date, the Borrowers shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
|
8.4
|
Voluntary prepayment. Subject to the following conditions, the Borrowers may prepay the whole or any part of the Loan on the last day of an Interest Period.
|
8.5
|
Conditions for voluntary prepayment. The conditions referred to in Clause 8.4 are that:
|
(a)
|
a partial prepayment shall be $500,000 or a higher integral multiple thereof;
|
(b)
|
the Agent has received from the Borrowers at least 10 Business Days' prior written notice specifying:
|
|
(i)
|
the amount to be prepaid and the date on which the prepayment is to be made;
|
|
(ii)
|
whether such prepayment will be applied against a single Tranche, in which case the Borrowers will specify the Tranche against which that prepayment should be applied. A failure by the Borrowers to make such a designation by no later than 3 Business Days prior to the date of the prepayment shall result in the prepayment being applied against the Loan in accordance with Clause 8.10(a);
|
(d)
|
the Borrowers have provided evidence satisfactory to the Agent that any consent required by the Borrowers or any Security Party in connection with the prepayment has been obtained and remains in force, and that any requirement relevant to this Agreement which affects the Borrowers or any Security Party has been complied with; and
|
(e)
|
the Borrowers have complied with Clause 8.12 on or prior to the date of prepayment.
|
8.6
|
Effect of notice of prepayment. A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrowers on the date for prepayment specified in the prepayment notice.
|
8.7
|
Notification of notice of prepayment. The Agent shall notify the Lenders promptly upon receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered by the Borrowers under Clause 8.5(c).
|
8.8
|
Mandatory prepayment. The Borrowers shall be obliged to prepay the Relevant Amount if a Ship is sold or becomes a Total Loss:
|
(a)
|
in the case of a sale on or before the date on which the sale is completed by delivery of the Ship to the buyer; or
|
(b)
|
in the case of a Total Loss, on the earlier of the date falling 120 days after the Total Loss Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.
|
|
(a)
|
the greater of:
|
|
(i)
|
the outstanding amount of the Tranche relative to the Ship which is to be sold and/or has become a Total Loss; and
|
|
(ii)
|
an amount which after the application of the prepayment to be made pursuant to this Clause 8.8, results in the security cover ratio under Clause 15.1 being the greater of (A) 125 per cent. and (B) the security cover ratio which applied immediately prior to the applicable event described in paragraph (a) or (b) of this Clause 8.8; and
|
8.9
|
Amounts payable on prepayment. A prepayment shall be made together with accrued interest (and any other amount payable under Clause 21 or otherwise) in respect of the amount prepaid and, if the prepayment is not made on the last day of an Interest Period together with any sums payable under Clause 21.1(b) but without premium or penalty.
|
8.10
|
Application of partial prepayment. Each partial prepayment shall be applied:
|
(a)
|
if made pursuant to Clause 8.4, in reducing pro rata the then outstanding Repayment Instalments and the Balloon Instalment in respect of the Tranche prepaid; and
|
(b)
|
if made pursuant to Clause 8.8, first towards full repayment of the Tranche related to the Ship being sold or which has become a Total Loss, and any balance shall thereafter be applied in pro rata reduction of the then outstanding Repayment Instalments and the Balloon Instalments specified in Clause 8.1 in respect of the other Tranche or Tranches which are then outstanding.
|
8.11
|
No re-borrowing. No amount prepaid may be re-borrowed.
|
8.12
|
Unwinding of Designated Transactions. On or prior to any repayment or prepayment under this Clause 8 or any other provision of this Agreement, the Borrowers shall wholly or partially reverse, offset, unwind or otherwise terminate one or more of the continuing Designated Transactions so that the notional principal amount of the continuing Designated Transactions thereafter remaining does not and will not in the future (taking into account the scheduled amortisation) exceed the amount of the Loan as reducing from time to time thereafter pursuant to Clause 8.1.
|
8.13
|
Prepayment of Swap Benefit. If a Designated Transaction is terminated in circumstances where the Swap Bank would be obliged to pay an amount to the Borrowers under the Master Agreement, the Borrowers hereby agree that such payment shall be applied in prepayment of the Loan in accordance with the provisions of Clause 8.10(b) and authorise the Swap Bank to pay such amount to the Agent for such purpose.
|
9
|
CONDITIONS PRECEDENT
|
9.1
|
Documents, fees and no default. Each Lender's obligation to contribute to a Tranche is subject to the following conditions precedent:
|
(a)
|
that, on or before the date of this Agreement, the Agent receives the documents described in Part A of Schedule 3 in form and substance satisfactory to the Agent and its lawyers;
|
(b)
|
that, on or before each Drawdown Date of a Tranche but prior to the making of that Tranche (or on the Delivery Date of the Ship being financed by that Tranche (as the case may be)), the Agent receives:
|
|
(i)
|
the documents described in Part B of Schedule 3 in form and substance satisfactory to the Agent and its lawyers;
|
|
(ii)
|
the payable of any fees payable pursuant to Clause 20.1 which are due and payable on the relevant Drawdown Date; and
|
|
(iii)
|
payment of any expenses payable pursuant to Clause 20.2 which are due and payable on that Drawdown Date;
|
(c)
|
that both at the date of each Drawdown Notice and at the relevant Drawdown Date:
|
|
(i)
|
no Event of Default or Potential Event of Default has occurred or would result from the borrowing of the relevant Tranche;
|
|
(ii)
|
the representations and warranties in Clause 10.1 and those of any Borrower, the Corporate Guarantor or any other Security Party which are set out in the other Finance Documents would be true and not misleading if repeated on each of those dates with reference to the circumstances then existing; and
|
|
(iii)
|
none of the circumstances contemplated by Clause 5.7 has occurred and is continuing; and
|
|
(iv)
|
there has been no Material Adverse Change; and
|
(d)
|
that the valuation of a Ship used to determine its Initial Market Value shows that the Tranche financing that Ship does not exceed 62 per cent. of its Initial Market Value; and
|
(e)
|
that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders, request by notice to the Borrowers prior to the relevant Drawdown Date.
|
9.2
|
Waiver of conditions precedent. If the Majority Lenders, at their discretion, permit a Tranche to be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrowers shall ensure that those conditions are satisfied within 5 Business Days after the relevant Drawdown Date (or such longer period as the Agent may, with the authorisation of the Majority Lenders, specify).
|
10
|
REPRESENTATIONS AND WARRANTIES
|
10.1
|
General. Each Borrower represents and warrants to each Creditor Party as follows.
|
10.2
|
Status. Each Borrower is duly incorporated, validly existing and in good standing under the laws of the Marshall Islands.
|
10.3
|
Share capital and ownership. Each Borrower has an authorised share capital of 500 registered shares with par value of $20.00 each, and the legal title and beneficial ownership of those shares is held, free of any Security Interest or other claim (other than a Permitted Security Interest), by the Corporate Guarantor.
|
10.4
|
Corporate power. Each Borrower has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:
|
(a)
|
to execute the Shipbuilding Contract and the Initial Charter to which it is a party, to purchase and pay for the Ship under the Shipbuilding Contract to which it is a party and register the Ship to be owned by it in its ownership under the Maltese flag;
|
(b)
|
to execute the Finance Documents to which that Borrower is a party; and
|
(c)
|
to borrow under this Agreement, to enter into Designated Transactions under the Master Agreement and to make all the payments contemplated by, and to comply with, those Finance Documents to which it is a party.
|
10.5
|
Consents in force. All the consents referred to in Clause 10.3 remain in force and nothing has occurred which makes any of them liable to revocation.
|
10.6
|
Legal validity; effective Security Interests. The Finance Documents to which each Borrower is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):
|
(a)
|
constitute that Borrower's legal, valid and binding obligations enforceable against that Borrower in accordance with their respective terms; and
|
(b)
|
create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,
|
10.7
|
No third party Security Interests. Without limiting the generality of Clause 10.6, at the time of the execution and delivery of each Finance Document to which a Borrower is a party:
|
(a)
|
each Borrower which is a party to that Finance Document will have the right to create all the Security Interests which that Finance Document purports to create; and
|
(b)
|
no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.
|
10.8
|
No conflicts. The execution by each Borrower of each Finance Document, the Shipbuilding Contract and the Initial Charter to which it is a party, and the borrowing by that Borrower (together with the other Borrowers) of the Loan, and its compliance with each Finance Document to which it is a party will not involve or lead to a contravention of:
|
(a)
|
any law or regulation; or
|
(b)
|
the constitutional documents of that Borrower; or
|
(c)
|
any contractual or other obligation or restriction which is binding on that Borrower or any of its assets,
|
10.9
|
No withholding taxes. All payments which each Borrower is liable to make under the Finance Documents to which it is a party may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.
|
10.10
|
No default. No Event of Default or Potential Event of Default has occurred.
|
10.11
|
Information. All information which has been provided in writing by or on behalf of the Borrowers or any Security Party to any Creditor Party in connection with any Finance Document satisfied the requirements of Clause 11.5; all audited and unaudited accounts and financial statements which have been so provided satisfied the requirements of Clause11.7; and there has been no change in the financial position or state of affairs of any Borrower or the Group from that disclosed in the latest of those accounts which is likely to have a Material Adverse Effect.
|
10.12
|
No litigation. No legal or administrative action involving any Borrower or any Security Party (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code and/or any actions relating to a Shipbuilding Contract) has been commenced or taken or, to any Borrower's knowledge, is likely to be commenced or taken which would, in either case, be likely to have a Material Adverse Effect.
|
10.13
|
Validity and completeness of the Initial Charters and Shipbuilding Contracts. Each Initial Charter and Shipbuilding Contract constitutes valid, binding and enforceable obligations of the parties thereto in accordance with its terms and:
|
(a)
|
the copies of the Initial Charters and Shipbuilding Contracts delivered to the Agent before the date of this Agreement are true and complete copies;
|
(b)
|
no amendments or additions to any Shipbuilding Contract and any Initial Charter have been agreed (other than as disclosed to the Lenders prior to the date of this Agreement) nor has any Borrower or a Seller or any charterer waived any of their respective rights under any Shipbuilding Contract or any Initial Charter.
|
10.14
|
Compliance with certain undertakings. At the date of this Agreement, the Borrowers are in compliance with Clauses 11.2, 11.4, 11.9 and 11.13.
|
10.15
|
Taxes paid. Each Borrower has paid all taxes applicable to, or imposed on or in relation to that Borrower, its business or the Ship owned by it.
|
10.16
|
No rebates etc. There is no agreement or understanding to allow or pay any rebate, premium, commission, discount or other benefit or payment (howsoever described) to any Borrower, a Builder, CSTC or any Security Party in connection with the purchase by each Borrower of each Ship, other than as disclosed to the Lenders in writing on or prior to the date of this Agreement.
|
10.17
|
ISM Code and ISPS Code compliance. All requirements of the ISM Code and the ISPS Code as they relate to the Borrowers, the Approved Manager and the Ships have been complied with.
|
10.18
|
No Money laundering. Each Borrower:
|
(a)
|
will not, and will procure that no Security Party, to the extent applicable, will, in connection with this Agreement or any of the other Finance Documents, contravene or permit any subsidiary to contravene, any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined in Article 1 of the Directive 2005/60/EC of the European Parliament and of the Council of the European Union of 26 October 2005) and comparable United States Federal and state laws. Each Borrower shall further submit any documents and declarations on request, if such documents or declarations are required by any Creditor Party to comply with its domestic money laundering and/or legal identification requirements; and
|
(b)
|
confirms that it is the beneficiary within the meaning of the German Anti Money Laundering Act (Gesetz über das Aufspüren von Gewinnen aus schweren Straftaten (Geldwäschegesetz)), acting for its own account and not for or on behalf of any other person for each part of the Loan made or to be made available to it under this Agreement. That is to say, it acts for its own account and not for or on behalf of anyone else.
|
10.19
|
No Immunity. The Borrower is subject to suit and to commercial law and neither it nor any of its properties have any right of immunity from suit, execution, attachment or other legal process in the Marshall Islands.
|
10.20
|
Choice of law. The choice of the laws of England to govern the Loan Agreement and those other Finance Documents which are expressed to be governed by the laws of England and the laws of Germany to govern the Account Pledges constitutes a valid choice of law and the submission by the Borrowers thereunder to the non-exclusive jurisdiction of the Courts of England or, in the case of the Account Pledges, Germany is a valid submission and does not contravene the laws of the Marshall Islands, Malta and the laws of England or, in the case of the Account Pledges, Germany will be applied by the Courts of the Marshall Islands or Malta if the Loan Agreement or those other Finance Documents or any claim thereunder comes under their jurisdiction upon proof of the relevant provisions of the laws of England or, in the case of the Account Pledges, Germany.
|
10.21
|
Repetition. The representations and warranties in this Clause 10 shall be deemed to be repeated by the Borrowers:
|
(a)
|
on the date of service of each Drawdown Notice;
|
(b)
|
on each Drawdown Date; and
|
(c)
|
with the exception of Clauses 10.9, 10.10, 10.11 and 10.12, on the first day of each Interest Period and on the date of any compliance certificate issued pursuant to Clause 12.5 of the Corporate Guarantee,
|
11
|
GENERAL UNDERTAKINGS
|
11.1
|
General. Each Borrower undertakes with each Creditor Party to comply with the following provisions of this Clause 11 at all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
11.2
|
Title; negative pledge and pari passu ranking. Each Borrower will:
|
(a)
|
after the Delivery Date of the Ship to be owned by it, hold the legal title to, and own the entire beneficial interest in that Ship, her Insurances and Earnings, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained in the Finance Documents and except for Permitted Security Interests;
|
(b)
|
not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future (including, but not limited to, the Borrowers' rights against the Swap Bank under the Master Agreement or all or any part of the Borrowers' interest in any amount payable to the Borrowers by the Swap Bank under the Master Agreement); and
|
(c)
|
procure that its liabilities under the Finance Documents to which it is a party rank at least pari passu with all its other present and future unsecured liabilities, except for liabilities which are mandatorily preferred by law.
|
11.3
|
No disposal of assets. No Borrower will transfer, lease or otherwise dispose of:
|
(a)
|
all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not; or
|
(b)
|
any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation,
|
11.4
|
No other liabilities or obligations to be incurred. No Borrower will incur any liability or obligation (including, without limitation, any Financial Indebtedness or any derivative or swap transactions in which case the Swap Bank would have the right of first refusal) except:
|
(a)
|
liabilities and obligations under the Shipbuilding Contracts, the Initial Charter and the Finance Documents to which it is or, as the case may be, will be a party; and
|
(b)
|
liabilities or obligations reasonably incurred in the normal course of its business of trading, operating and chartering, maintaining and repairing the Ship owned by it.
|
11.5
|
Information provided to be accurate. All financial and other information, including but not limited to factual information, exhibits and reports, which is provided in writing by or on behalf of a Borrower under or in connection with any Finance Document will be true and not misleading and will not omit any material fact or consideration.
|
11.6
|
Provision of financial statements. Each Borrower will send or procure that there are sent to the Agent:
|
(a)
|
as soon as possible, but in no event later than 180 days after the end of each Financial Year of that Borrower and the Corporate Guarantor, the individual audited annual accounts of that Borrower and the consolidated audited annual accounts of the Corporate Guarantor for that Financial Year (in the case of each Borrower commencing with its accounts for the Financial Year ending on 31 December 2012 and in the case of the Corporate Guarantor commencing with its accounts for the Financial Year that ended on 31 December 2011) duly certified as to their correctness by the chief financial officer of the Corporate Guarantor; and
|
(b)
|
as soon as possible, but in no event later than 90 days after the end of each 3-month period ending on 31 March, 30 June, 30 September and 31 December in each Financial Year of that Borrower or, as the case may be, the Corporate Guarantor, the quarterly individual unaudited accounts in respect of that Borrower or, in the case of the Corporate Guarantor, the quarterly consolidated unaudited accounts of the Corporate Guarantor, in each case, for that 3-month period (in the case of the Corporate Guarantor, commencing with the accounts for the quarter ending on 31 March 2012 and in the case of each Borrower, commencing with the accounts for the first financial quarter ending after the Delivery Date of the Ship to be owned by that Borrower) duly certified as to their correctness by the chief financial officer of the Corporate Guarantor; and
|
(c)
|
promptly after each reasonable request by the Agent, such further financial or other information in respect of each Borrower, each Ship, the Corporate Guarantor, the other Security Parties and the Group.
|
11.7
|
Form of financial statements. All accounts (audited and unaudited) delivered under Clause 11.6 will:
|
(a)
|
be prepared in accordance with all applicable laws and GAAP consistently applied and by auditors acceptable to the Lenders;
|
(b)
|
give a true and fair view of the state of affairs of each Borrower, the Corporate Guarantor and the Group at the date of those accounts and of its profit for the period to which those accounts relate; and
|
(c)
|
fully disclose or provide for all significant liabilities of each Borrower, the Corporate Guarantor and the Group.
|
11.8
|
Creditor notices. Each Borrower will send the Agent, at the same time as they are despatched, copies of all communications which are despatched to that Borrower's creditors or any class of them.
|
11.9
|
Consents. Each Borrower will maintain in force and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:
|
(a)
|
for that Borrower to perform its obligations under the Shipbuilding Contract, the Initial Charter and any Finance Document to which it is or, as the case may be, will be a party;
|
(b)
|
for the validity or enforceability of the Shipbuilding Contract, the Initial Charter and any Finance Document to which it is or, as the case may be, will be a party; and
|
(c)
|
for that Borrower to continue to own and operate the Ship owned by it,
|
11.10
|
Maintenance of Security Interests. Each Borrower will:
|
(a)
|
at its own cost, do all that it is necessary to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and
|
(b)
|
without limiting the generality of paragraph (a), at its own cost, promptly register, file, record or enrol any Finance Document with any court or authority in all Pertinent Jurisdictions, pay any stamp, registration or similar tax in all Pertinent Jurisdictions in respect of any Finance Document, give any notice or take any other step which, in the opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.
|
11.11
|
Notification of litigation. Each Borrower will provide the Agent with details of any legal or administrative action involving that Borrower, any Security Party, the Approved Manager or the Ship owned (or to be owned) by it, the Earnings or the Insurances in respect of that Ship as soon as such action is instituted or it becomes apparent to that Borrower that it is likely to be instituted, unless it is clear that the legal or administrative action cannot be considered material in the context of any Finance Document.
|
11.12
|
No amendment to the Initial Charters and the Shipbuilding Contracts. No Borrower will agree to any amendment or supplement to, or waive or fail to enforce, the Shipbuilding Contract or Initial Charter to which it is a party or any of its provisions.
|
11.13
|
Principal place of business. Each Borrower will maintain its place of business, and keep its corporate documents and records, at the address disclosed to the Agent in writing on or prior to the date of this Agreement; and no Borrower will establish, or do anything as a result of which it would be deemed to have, a place of business in any country other than the Marshall Islands or Greece.
|
11.14
|
Confirmation of no default. Each Borrower will, within 2 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by the authorised signatory or a director of that Borrower and which:
|
(a)
|
states that no Event of Default or Potential Event of Default has occurred; or
|
(b)
|
states that no Event of Default or Potential Event of Default has occurred, except for a specified event or matter, of which all material details are given.
|
11.15
|
Notification of default. Each Borrower will notify the Agent as soon as that Borrower becomes aware of:
|
(a)
|
the occurrence of an Event of Default or a Potential Event of Default; or
|
(b)
|
any matter which indicates that an Event of Default or a Potential Event of Default may have occurred,
|
11.16
|
Provision of further information. Each Borrower will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information relating:
|
(a)
|
to that Borrower, the Ship owned by it, the Earnings or the Insurances; or
|
(b)
|
to any other matter relevant to, or to any provision of, a Finance Document or the Master Agreement,
|
11.17
|
Provision of copies and translation of documents. Each Borrower will supply the Agent with a sufficient number of copies of the documents referred to above to provide 1 copy for each Creditor Party; and if the Agent so requires in respect of any of those documents, the Borrowers will provide a certified English translation prepared by a translator approved by the Agent.
|
11.18
|
Minimum Liquidity. The Borrowers undertake to maintain in the Liquidity Account at all times during the Security Period, credit balances in the amount (the "Minimum Liquidity") equal to $350,000 per Mortgaged Ship.
|
11.19
|
Ocean Rig Shares. The Borrowers undertake to procure that, from the date of this Agreement and throughout the Security Period, the Corporate Guarantor, being the legal owner of the Ocean Rig Shares, shall hold such shares free from all Security Interests and/or any other interests and rights of every kind until such time as:
|
(a)
|
the Corporate Guarantor raises additional net equity (in cash) of at least $300,000,000; or
|
(b)
|
the Corporate Guarantor sells, disposes or transfers outstanding shares of common stock in Ocean Rig held by it at that time (including, without limitation, the Ocean Rig Shares) having a total trading value of at least $300,000,000
|
|
(i)
|
22,000,000 issued and outstanding shares of common stock in Ocean Rig (including all other or additional stock or other securities or property paid or distributed in respect of these shares by way of stock-split, spin-off, split-up, reclassification, combination of shares or similar arrangements) held by the Corporate Guarantor; or
|
|
(ii)
|
if on the date of this Agreement the trading value (the "Spot Value") of the shares in Ocean Rig is less than $15.00 per share, the total number of shares in Ocean Rig achieved by dividing $330,000,000 by the Spot Value.
|
11.20
|
Compliance Check. Compliance with the undertakings contained in Clause 11.18 and Clause 15.1 shall be determined on 30 June and 31 December in each Financial Year of that Borrower, being, in each case, the date on which the Borrowers shall deliver to the Agent a Compliance Certificate demonstrating (inter alia) their compliance (or not, as the case may be) with the provisions of such Clauses duly signed by the sole director of each Borrower.
|
11.21
|
"Know your customer" checks. If:
|
(a)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(b)
|
any change in the status of any Borrower or any Security Party after the date of this Agreement; or
|
(c)
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
12
|
CORPORATE UNDERTAKINGS
|
12.1
|
General. Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit in writing.
|
12.2
|
Maintenance of status. Each Borrower will maintain its separate corporate existence and remain in good standing under the laws of the Marshall Islands.
|
12.3
|
Negative undertakings. No Borrower will:
|
(a)
|
change the nature of its business; or
|
(b)
|
pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if an Event of Default has occurred and is continuing at the relevant time or an Event of Default will result from the payment of a dividend or the making of any other form of distribution or
|
(c)
|
provide any form of credit or financial assistance to:
|
|
(i)
|
a person who is directly or indirectly interested in that Borrower's share or loan capital; or
|
|
(ii)
|
any company in or with which such a person is directly or indirectly interested or connected,
|
(d)
|
open or maintain any account with any bank or financial institution except accounts with the Agent and the Security Trustee for the purposes of the Finance Documents;
|
(e)
|
issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital;
|
(f)
|
acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative other than the Designated Transactions; or
|
(g)
|
enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation.
|
13
|
INSURANCE
|
13.1
|
General. Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 13 at all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit.
|
13.2
|
Maintenance of obligatory insurances. Each Borrower shall keep the Ship owned by it insured at the expense of that Borrower against:
|
(a)
|
fire and usual marine risks (including hull and machinery and excess risks);
|
(b)
|
war risks (including protection and indemnity war risks with a separate limit not less than hull value);
|
(c)
|
protection and indemnity risks (including, without limitation, pollution risks and protection and indemnity war risks in excess of the primary limit for war protection and indemnity to the highest amount available in the international insurance market); and
|
(d)
|
any other risks against which the Agent acting on the instructions of the Majority Lenders, having regard to practices, recommendations and other circumstances prevailing at the relevant time, may from time to time require by notice to that Borrower.
|
13.3
|
Terms of obligatory insurances. Each Borrower shall effect such insurances in such amounts in such currency and upon such terms (including LSW 1189 or comparable mortgage clauses, if required by the Agent,) as shall from time to time be approved in writing by the Agent, but in any event as follows:
|
(a)
|
in Dollars;
|
(b)
|
in the case of fire and usual marine risks and war risks, on an agreed value basis in approved amounts but not in any event less than an amount equal to the higher of (i) an amount which when aggregated with the amount for which all other Mortgaged Ships are insured pursuant to this Clause 13.3(b) is equal to 120 per cent. of the aggregate of (A) the Loan, (B) any Swap Exposure and (ii) the Market Value of the Ship owned by it;
|
(c)
|
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry (with the international group of protection and indemnity clubs) and the international marine insurance market (currently $1,000,000,000);
|
(d)
|
in relation to protection and indemnity risks in respect of the full value and tonnage of the Ship owned by it;
|
(e)
|
in relation to war risks insurance, extended to cover piracy and terrorism where excluded under the fire and usual marine risks insurance;
|
(f)
|
on approved terms and conditions; and
|
(g)
|
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations which are members of the International Group of Protection and Indemnity Associations, and have a Standard & Poor's rating of at least BBB or a comparable rating by any other rating agency acceptable to the Agent (acting with the authorisation of the Majority Lenders).
|
13.4
|
Further protections for the Creditor Parties. In addition to the terms set out in Clause 13.3, each Borrower shall procure that:
|
(a)
|
that Borrower and any and all third parties who are named assured or co-assured under any obligatory insurance shall assign their interest in any and all obligatory insurances and other Insurances if so required by the Agent;
|
(b)
|
whenever the Security Trustee requires, the obligatory insurances name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Trustee, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c)
|
the interest of the Security Trustee as assignee and as loss payee shall be duly endorsed on all slips, cover notes, policies, certificates of entry or other instruments of insurance in respect of the obligatory insurances;
|
(d)
|
the obligatory insurances shall name the Security Trustee as sole loss payee with such directions for payment as the Security Trustee may specify;
|
(e)
|
the obligatory insurances shall provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;
|
(f)
|
the obligatory insurances shall provide that the insurers shall waive, to the fullest extent permitted by English law, their entitlement (if any) (whether by statute, common law, equity, or otherwise) to be subrogated to the rights and remedies of the Security Trustee in respect of any rights or interests (secured or not) held by or available to the Security Trustee in respect of the Secured Liabilities, until the Secured Liabilities shall have been fully repaid and discharged, except that the insurers shall not be restricted by the terms of this paragraph (f) from making personal claims against persons (other than the Borrowers or any Creditor Party) in circumstances where the insurers have fully discharged their liabilities and obligations under the relevant obligatory insurances;
|
(g)
|
the obligatory insurances shall provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Trustee or any other Creditor Party;
|
(h)
|
the obligatory insurances shall provide that the Security Trustee may make proof of loss if that Borrower fails to do so; and
|
(i)
|
the obligatory insurances shall provide that if any obligatory insurance is cancelled, or if any substantial change is made in the coverage which adversely affects the interest of the Security Trustee, or if any obligatory insurance is allowed to lapse for non-payment of premium, such cancellation, charge or lapse shall not be effective with respect to the Security Trustee for 14 days (or 7 days in the case of war risks) after receipt by the Security Trustee of prior written notice from the insurers of such cancellation, change or lapse.
|
13.5
|
Renewal of obligatory insurances. Each Borrower shall:
|
(a)
|
at least 14 days before the expiry of any obligatory insurance effected by it:
|
|
(i)
|
notify the Security Trustee of the brokers, underwriters, insurance companies and any protection and indemnity or war risks association through or with whom that Borrower proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
|
(ii)
|
seek the Security Trustee's approval to the matters referred to in paragraph (i);
|
(b)
|
at least 7 days (in respect of war risks cover) and 14 days (in respect of the other obligatory insurances)before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Security Trustee's approval pursuant to paragraph (a); and
|
(c)
|
procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Trustee in writing of the terms and conditions of the renewal.
|
13.6
|
Copies of policies; letters of undertaking. Each Borrower shall ensure that all approved brokers provide the Security Trustee with pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew and of a letter or letters of undertaking in a form required by the Security Trustee and including undertakings by the approved brokers that:
|
(a)
|
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4;
|
(b)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause;
|
(c)
|
they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances;
|
(d)
|
they will notify the Security Trustee, not less than 14 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from that Borrower or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions; and
|
(e)
|
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of that Ship forthwith upon being so requested by the Security Trustee.
|
13.7
|
Copies of certificates of entry; letters of undertaking. Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provides the Security Trustee with:
|
(a)
|
a copy of the certificate of entry for that Ship;
|
(b)
|
original(s) of a letter or letters of undertaking in such form as may be required by the Security Trustee;
|
(c)
|
where required to be issued under the terms of insurance/indemnity provided by a Borrower's protection and indemnity association, a copy of each United Sates of America voyage quarterly declaration (or other similar document or documents) made by that Borrower in accordance with the requirements of such protections and indemnity association; and
|
(d)
|
a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship (if applicable).
|
13.8
|
Deposit of original policies. Each Borrower shall ensure that all policies relating to obligatory insurances effected by it are deposited with the approved brokers through which the insurances are effected or renewed.
|
13.9
|
Payment of premiums. Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by it and produce all relevant receipts when so required by the Security Trustee.
|
13.10
|
Guarantees. Each Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
|
13.11
|
Restrictions on employment. No Borrower shall employ its Ship, nor shall permit it to be employed, outside the cover provided by any obligatory insurances.
|
13.12
|
Compliance with terms of insurances. No Borrower shall do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in particular:
|
(a)
|
each Borrower shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause 13.6(c)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval;
|
(b)
|
no Borrower shall make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances without the underwriters' consent;
|
(c)
|
each Borrower shall make (and promptly supply copies to the Agent (upon its request)) of all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation) and, if applicable, shall procure that the Approved Manager comply with this requirement; and
|
(d)
|
no Borrower shall employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
13.13
|
Alteration to terms of insurances. No Borrower shall either make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
|
13.14
|
Settlement of claims. No Borrower shall settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
13.15
|
Provision of copies of communications. Each Borrower shall provide the Security Trustee, at the time of each such communication (other than (unless specifically required
|
(a)
|
the approved brokers;
|
(b)
|
the approved protection and indemnity and/or war risks associations; and
|
(c)
|
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
|
|
(i)
|
that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and
|
|
(ii)
|
any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances.
|
13.16
|
Provision of information and further undertakings. In addition, each Borrower shall promptly provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such designated person) requests for the purpose of:
|
(a)
|
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b)
|
effecting, maintaining or renewing any such insurances as are referred to in Clause 13.17 or dealing with or considering any matters relating to any such insurances,
|
(c)
|
do all things necessary and provide the Agent and the Security Trustee with all documents and information to enable the Security Trustee to collect or recover any moneys in respect of the Insurances which are payable to the Security Trustee pursuant to the Finance Documents;
|
(d)
|
promptly provide the Agent with full information regarding any Major Casualty or in consequence whereof that Ship has become or may become a Total Loss and agree to any settlement of such casualty or other accident or damage to that Ship only with the Agent's prior written consent,
|
13.17
|
Mortgagee's interest and additional perils insurances. The Security Trustee shall be entitled from time to time to effect, maintain and renew all or any of the following insurances in such amounts, on such terms, through such insurers and generally in such manner as the Majority Lenders may from time to time consider appropriate:
|
(a)
|
a mortgagee's interest insurance providing for the indemnification of the Creditor Parties for any losses under or in connection with any Finance Document (in an amount of up to 120 per cent. of the aggregate of (i) the Loan and (ii) any Swap Exposure) which directly or indirectly result from loss of or damage to a Ship or a liability of that Ship or of the Borrower which is the owner thereof, being a loss or damage which is prima facie covered by an obligatory insurance but in respect of which there is a non-payment (or reduced payment) by the underwriters by reason of, or on the basis of an allegation concerning:
|
|
(i)
|
any act or omission on the part of that Borrower, of any operator, charterer, manager or sub-manager of that Ship or of any officer, employee or agent of such Borrower or of any such person, including any breach of warranty or condition or any non-disclosure relating to such obligatory insurance;
|
|
(ii)
|
any act or omission, whether deliberate, negligent or accidental, or any knowledge or privity of that Borrower, any other person referred to in paragraph (i) above, or of any officer, employee or agent of that Borrower or of such a person, including the casting away or damaging of that Ship and/or such Ship being unseaworthy; and/or
|
|
(iii)
|
any other matter capable of being insured against under a mortgagee's interest marine insurance policy whether or not similar to the foregoing; and
|
(b)
|
a mortgagee's interest additional perils insurance providing for the indemnification of the Creditor Parties against, among other things, any possible losses or other consequences of any Environmental Claim, including the risk of expropriation, arrest or any form of detention of that Ship, the imposition of any Security Interest over that Ship and/or any other matter capable of being insured against under a mortgagee's interest additional perils policy whether or not similar to the foregoing, and in an amount of up to 110 per cent. of the aggregate of (i) the Loan and (ii) any Swap Exposure,
|
|
and the Borrowers shall upon demand fully indemnify the Security Trustee in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.
|
13.18
|
Review of insurance requirements. The Security Trustee shall be entitled to review the requirements of this Clause 13 from time to time in order to take account of any changes in circumstances after the date of this Agreement which are, in the opinion of the Agent (acting on the instructions of the Majority Lenders), significant and capable of affecting the Borrowers, the Ships and their Insurances (including, without limitation, changes in the availability or the cost of insurance coverage or the risks to which each Borrower may be subject) and the Borrowers shall upon demand fully indemnify the Agent in respect of all fees and other expenses incurred by or for the account of the Agent in appointing an independent marine insurance broker or adviser to conduct such review.
|
13.19
|
Modification of insurance requirements. The Security Trustee shall notify the Borrowers of any proposed modification under Clause 13.18 to the requirements of this Clause 13 which the Security Trustee reasonably consider appropriate in the circumstances, and such modification shall take effect on and from the date it is notified in writing to the Borrowers as an amendment to this Clause 13 and shall bind the Borrowers accordingly.
|
13.20
|
Compliance with mortgagee's instructions. The Security Trustee shall be entitled (without prejudice to or limitation of any other rights which it may have or acquire under any Finance Document) to require a Ship to remain at any safe port or to proceed to and remain at any safe port designated by the Security Trustee until the Borrower owning that Ship implements any amendments to the terms of the obligatory insurances and any operational changes required as a result of a notice served under Clause 13.19
|
14
|
SHIP COVENANTS
|
14.1
|
General. Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 14 at all times (after the Delivery Date of its Ship) during the Security Period except as the Agent, with the authorisation of the Majority Lenders, may otherwise permit.
|
14.2
|
Ship's name and registration. Each Borrower shall keep the Ship owned by it registered in its name under the Maltese flag; shall not do, omit to do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port of registry of that Ship.
|
14.3
|
Repair and classification. Each Borrower shall, and shall procure that the Approved Manager shall, keep the Ship owned by it in a good and safe condition and state of repair, sea and cargo worthy in all respects:
|
(a)
|
consistent with first-class ship ownership and management practice;
|
(b)
|
so as to maintain the highest class free of overdue recommendations and conditions, with a classification society which is a member of IACS and acceptable to the Agent; and
|
(c)
|
so as to comply with all laws and regulations applicable to vessels registered at ports in Malta or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code.
|
14.4
|
Classification society undertaking. Each Borrower shall instruct the classification society referred to in Clause 14.3 (and procure that the classification society undertakes with the Security Trustee) in relation to its Ship:
|
(a)
|
to send to the Security Trustee, following receipt of a written request from the Security Trustee, certified true copies of all original class records and any other related records held by the classification society in relation to the Ship owned by that Borrower;
|
(b)
|
to allow the Security Trustee (or its agents), at any time and from time to time, to inspect the original class and related records of that Ship at the offices of the classification society and to take copies of them;
|
(c)
|
to notify the Security Trustee immediately in writing if the classification society:
|
|
(i)
|
receives notification from that Borrower or any person that that Ship's classification society is to be changed; or
|
|
(ii)
|
becomes aware of any facts or matters which may result in or have resulted in a change, suspension, discontinuance, withdrawal or expiry of that Ship's class under the rules or terms and conditions of that Borrower's or that Ship's membership of the classification society;
|
(d)
|
following receipt of a written request from the Security Trustee:
|
|
(i)
|
to confirm that that Borrower is not in default of any of its contractual obligations or liabilities to the classification society and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to the classification society; or
|
|
(ii)
|
if that Borrower is in default of any of its contractual obligations or liabilities to the classification society, to specify to the Security Trustee in reasonable detail the facts and circumstances of such default, the consequences thereof, and any remedy period agreed or allowed by the classification society.
|
14.5
|
Modification. No Borrower shall make any modification or repairs to, or replacement of, its Ship or equipment installed on it which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce its value.
|
14.6
|
Removal of parts. No Borrower shall remove any material part of its Ship, or any item of equipment installed on, that Ship unless the part or item so removed is forthwith
|
14.7
|
Surveys. Each Borrower shall submit the Ship owned by it regularly to all periodical or other surveys which may be required for classification purposes and, if so required by the Security Trustee provide the Security Trustee, with copies of all survey reports.
|
14.8
|
Inspection. Each Borrower shall permit the Security Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship owned by it at all reasonable times to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections at the Borrowers' expense, and if the inspector or surveyor appointed by the Security Trustee under this Clause is of the opinion that there are any technical, commercial or operational actions being undertaken or omitted to be undertaken by the Borrower which is the owner of that Ship or the Approved Manager which affect the operation or value of that Ship, the Borrowers shall forthwith (at their expense) on the Security Trustee's demand remedy such action or inaction Provided that unless an Event of Default has occurred, the Borrower shall not have to pay for more than 1 inspection of the Ship in each calendar year.
|
14.9
|
Prevention of and release from arrest. Each Borrower shall as promptly as possible discharge:
|
(a)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship owned by it, the Earnings or the Insurances;
|
(b)
|
all taxes, dues and other amounts charged in respect of that Ship, the Earnings or the Insurances; and
|
(c)
|
all other outgoings whatsoever in respect of that Ship, the Earnings or the Insurances,
|
14.10
|
Compliance with laws etc. Each Borrower shall:
|
(a)
|
comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws and all other laws or regulations relating to the Ship owned by it, its ownership, operation and management or to the business of that Borrower and the Approved Manager (including, but not limited to, the International Management Code for the Safe Operation of Ships and for Pollution Prevention);
|
(b)
|
not employ the Ship owned by it nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code and the ISPS Code; and
|
(c)
|
in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit that Ship to enter or trade to any zone which is declared a war zone by any government or by the Ship's war risks insurers unless the prior written consent of the Security Trustee has been given and that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Trustee may require.
|
14.11
|
Provision of information. Each Borrower shall promptly provide the Security Trustee with any information which it requests regarding:
|
(a)
|
the Ship owned by it, its employment, position and engagements;
|
(b)
|
the Earnings and payments and amounts due to the master and crew of that Ship;
|
(c)
|
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made in respect of that Ship;
|
(d)
|
any towages and salvages; and
|
(e)
|
its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code,
|
14.12
|
Notification of certain events. Each Borrower shall immediately notify the Security Trustee by letter, of:
|
(a)
|
any casualty which is or is likely to be or to become a Major Casualty;
|
(b)
|
any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c)
|
any requirement, condition or recommendation made by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(d)
|
any arrest or detention of that Ship, any exercise or purported exercise of any lien on that Ship or its Earnings or any requisition of that Ship for hire;
|
(e)
|
any intended dry docking of that Ship;
|
(f)
|
any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident;
|
(g)
|
any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, the Approved Manager or otherwise in connection with that Ship; or
|
(h)
|
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
14.13
|
Restrictions on chartering, appointment of managers etc. No Borrower shall, in relation to the Ship owned by it:
|
(a)
|
let that Ship on demise charter for any period;
|
(b)
|
enter into any time or consecutive voyage charter (other than the Initial Charter to which that Borrower is a party) in respect of that Ship for an original term exceeding 11 months;
|
(c)
|
enter into any charter in relation to that Ship under which more than 2 months' hire (or the equivalent) is payable in advance;
|
(d)
|
charter that Ship otherwise than on bona fide arm's length terms at the time when that Ship is fixed;
|
(e)
|
appoint a manager of that Ship other than the Approved Manager or agree to any material alteration to the terms of the Approved Manager's appointment;
|
(f)
|
de-activate or lay up that Ship; or
|
(g)
|
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $500,000 (or the equivalent in any other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason.
|
14.14
|
Notice of Mortgage. Each Borrower shall keep the Mortgage relative to its Ship registered against that Ship as a valid first priority mortgage, carry on board that Ship a certified copy of that Mortgage and place and maintain in a conspicuous place in the navigation room and the Master's cabin of that Ship a framed printed notice stating that that Ship is mortgaged by that Borrower to the Security Trustee.
|
14.15
|
Sharing of Earnings. No Borrower shall:
|
(a)
|
enter into any agreement or arrangement for the sharing of any Earnings;
|
(b)
|
enter into any agreement or arrangement for the postponement of any date on which any Earnings are due; the reduction of the amount of any Earnings or otherwise for the release or adverse alteration of any right of that Borrower to any Earnings.
|
14.16
|
ISPS Code. Each Borrower shall comply with the ISPS Code and in particular, without limitation, shall:
|
(a)
|
procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain for that Ship an ISSC; and
|
(c)
|
notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.
|
14.17
|
Charterparty Assignment. If a Borrower enters into any Approved Charter (subject to obtaining the consent of the Agent in accordance with Clause 14.13(b)), that Borrower shall at the request of the Agent, execute in favour of the Security Trustee a Charterparty Assignment and shall:
|
(a)
|
serve notice of the Charterparty Assignment on the charterer and make best effort so that the charterer acknowledges such notice in such form as the Agent may approve or require; and
|
(b)
|
deliver to the Agent such other documents equivalent to those referred to at paragraphs 3, 4 and 5 of Schedule 3, Part A as the Agent may require.
|
15
|
SECURITY COVER
|
15.1
|
Minimum required security cover. Clause 15.2 applies if the Agent notifies the Borrowers that:
|
(a)
|
the aggregate of the Market Values of the Mortgaged Ships; plus
|
(b)
|
the net realisable value of any additional security previously provided under this Clause 15 (for the avoidance of the doubt excluding any balance standing to the credit of the Liquidity Account pursuant to Clause 11.18),
|
15.2
|
Provision of additional security; prepayment. If the Agent serves a notice on the Borrowers under Clause 15.1, the Borrowers shall prepay such part at least of the Loan as will eliminate the shortfall on or before the date falling 20 Business Days after the date on which the Agent's notice is served under Clause 15.1 (the "Prepayment Date") unless at least 1 Business Day before the Prepayment Date the Borrowers have provided, or ensured that a third party has provided, additional security which, in the opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Agent may, with the authorisation of the Majority Lenders, approve or require.
|
15.3
|
Valuation of Ships. The Market Value of a Mortgaged Ship or any other Fleet Vessel at any date is that shown by taking the arithmetic means of two valuations each prepared:
|
(a)
|
by an Approved Broker appointed by the Agent in the case of a Mortgaged Ship and by the Borrower in the case of any other Fleet Vessel, with all such valuations being addressed to the Agent;
|
(b)
|
as at a date not more than 14 days previously;
|
(c)
|
with or without physical inspection of the Ship (as the Agent may require);
|
(d)
|
on the basis of a sale for prompt delivery for cash on normal arm's length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and
|
(e)
|
after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale,
|
15.4
|
Value of additional vessel security. The net realisable value of any additional security which is provided under Clause 15.2 and which consists of a Security Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 15.3.
|
15.5
|
Valuations binding. Any valuation under Clause 15.2, 15.3 or 15.4 shall be binding and conclusive as regards the Borrowers, as shall be any valuation which the Majority Lenders make of any additional security which does not consist of or include a Security Interest.
|
15.6
|
Provision of information. The Borrowers shall promptly provide the Agent and any Approved Broker or expert acting under Clause 15.3 or 15.4 with any information which the Agent or that Approved Broker or expert may reasonably request for the purposes of the valuation; and, if the Borrowers fail to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which that
|
15.7
|
Payment of valuation expenses. Without prejudice to the generality of the Borrowers' obligations under Clauses 20.1, 20.3 and 21.4, the Borrowers shall, on demand, pay the Agent the amount of the fees and expenses of any Approved Broker or expert instructed by the Agent under this Clause and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause.
|
16
|
PAYMENTS AND CALCULATIONS
|
16.1
|
Currency and method of payments. All payments to be made by the Lenders or by any Borrower under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it:
|
(a)
|
by not later than 11.00 a.m. (New York City time) on the due date;
|
(b)
|
in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement);
|
(c)
|
in the case of an amount payable by a Lender to the Agent or by any Borrower to the Agent or any Lender, to the account of the Agent at JP Morgan Chase Bank, New York (SWIFT Code CHASUS33) (Account No. 001-1-331 808 in favour of HSH Nordbank AG, Hamburg, SWIFT Code HSHNDEHH; Reference "Amathus Owning Company Limited, Symi Owners Inc. and Kalymnos Owners Inc.") or to such other account with such other bank as the Agent may from time to time notify to the Borrowers; and
|
(d)
|
in the case of an amount payable to the Security Trustee, to such account as it may from time to time notify to the Borrowers and the other Creditor Parties.
|
16.2
|
Payment on non-Business Day. If any payment by any Borrower under a Finance Document would otherwise fall due on a day which is not a Business Day:
|
(a)
|
the due date shall be extended to the next succeeding Business Day; or
|
(b)
|
if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day,
|
16.3
|
Basis for calculation of periodic payments. All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
16.4
|
Distribution of payments to Creditor Parties. Subject to Clauses 16.5, 16.6 and 16.7:
|
(a)
|
any amount received by the Agent under a Finance Document for distribution or remittance to a Lender, the Swap Bank or the Security Trustee shall be made available by the Agent to that Lender, the Swap Bank or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender, the Swap Bank or the Security Trustee may have notified to the Agent not less than 5 Business Days previously; and
|
(b)
|
amounts to be applied in satisfying amounts of a particular category which are due to the Lenders and/or the Swap Bank generally shall be distributed by the Agent to each Lender and the Swap Bank pro rata to the amount in that category which is due to it.
|
16.5
|
Permitted deductions by Agent. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender or the Swap Bank, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender or the Swap Bank under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender or the Swap Bank to pay on demand.
|
16.6
|
Agent only obliged to pay when monies received. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to any Borrower or any Lender or the Swap Bank any sum which the Agent is expecting to receive for remittance or distribution to that Borrower or that Lender or the Swap Bank until the Agent has satisfied itself that it has received that sum.
|
16.7
|
Refund to Agent of monies not received. If and to the extent that the Agent makes available a sum to a Borrower or a Lender or the Swap Bank, without first having received that sum, that Borrower or (as the case may be) the Lender or the Swap Bank concerned shall, on demand:
|
(a)
|
refund the sum in full to the Agent; and
|
(b)
|
pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.
|
16.8
|
Agent may assume receipt. Clause 16.7shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available.
|
16.9
|
Creditor Party accounts. Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.
|
16.10
|
Agent's memorandum account. The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender from the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.
|
16.11
|
Accounts prima facie evidence. If any accounts maintained under Clauses 16.9 and 16.10 show an amount to be owing by a Borrower or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party.
|
17
|
APPLICATION OF RECEIPTS
|
17.1
|
Normal order of application. Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:
|
(a)
|
FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions:
|
|
(i)
|
firstly, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents other than those amounts referred to at paragraphs (ii) and (iii) (including, but without limitation, all amounts payable by any Borrower under Clauses 20, 21 and 22 of this Agreement or by any Borrower or any Security Party under any corresponding or similar provision in any other Finance Document);
|
|
(ii)
|
secondly, in or towards satisfaction pro rata of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents (and, for this purpose, the expression "interest" shall include any net amount which any Borrower shall have become liable to pay or deliver under section 2(e) (Obligations) of the Master Agreement but shall have failed to pay or deliver to the Swap Bank at the time of application or distribution under this Clause 17); and
|
|
(iii)
|
thirdly, in or towards satisfaction pro rata of the Loan and the Swap Exposure (in the case of the latter, calculated as at the actual Early Termination Date applying to each particular Designated Transaction, or if no such Early Termination Date shall have occurred, calculated as if an Early Termination Date occurred on the date of application or distribution hereunder);
|
(b)
|
SECONDLY: in retention (in an interest bearing account) of an amount equal to any amount not then due and payable under any Finance Document but which the Agent, by notice to the Borrowers (or any of them), the Security Parties and the other Creditor Parties, states in its opinion will either or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 17.1(a); and
|
(c)
|
THIRDLY: any surplus shall be paid to the Borrowers or to any other person appearing to be entitled to it.
|
17.2
|
Variation of order of application. The Agent may, with the authorisation of the Majority Lenders and the Swap Bank, by notice to the Borrowers, the Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 either as regards a specified sum or sums or as regards sums in a specified category or categories.
|
17.3
|
Notice of variation of order of application. The Agent may give notices under Clause 17.2 from time to time; and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business Day before the date on which the notice is served.
|
17.4
|
Appropriation rights overridden. This Clause 17and any notice which the Agent gives under Clause 17.2 shall override any right of appropriation possessed, and any appropriation made, by any Borrower or any Security Party.
|
18
|
APPLICATION OF EARNINGS; SWAP PAYMENTS
|
18.1
|
Payment of Earnings and swap payments. Each Borrower undertakes with each Creditor Party to ensure that, throughout the Security Period (and subject only to the provisions of the General Assignment to which it is a party):
|
(a)
|
all Earnings of the Ship owned by it are paid to the Earnings Account for that Ship; and
|
(b)
|
all payments by the Swap Bank to the Borrowers under each Designated Transaction are paid to the Swap Account.
|
18.2
|
Monthly retentions. The Borrowers undertake with each Creditor Party to ensure that throughout the Security Period commencing on the date falling one month after the Drawdown Date of each Tranche and on the same day in each subsequent month, there is transferred to:
|
|
(a)
|
the Retention Account out of the Earnings received in the Earnings Accounts during the preceding calendar month:
|
|
(i)
|
one-third of the amount of the Repayment Instalment in respect of that Tranche falling due under Clause 8.1 on the next Repayment Date in respect of that Tranche; and
|
|
(ii)
|
the Relevant Fraction of the aggregate amount of interest on that Tranche which is payable on the next due date for payment of interest under this Agreement; and
|
|
(b)
|
the Swap Account the Relevant Fraction of the net amount which is payable by the Borrowers to the Swap Bank in respect of any Designated Transaction on the next due date for payment of such amount under the relevant Confirmation.
|
|
(a)
|
in relation to paragraph (a)(i), a fraction of which the numerator is 1 and the denominator the number of months comprised in the then current Interest Period for the relevant Tranche (or, if the current Interest Period in respect of that Tranche ends after the next due date for payment of interest under this Agreement the number of months from the later of the commencement of the current Interest Period in respect of that Tranche or the last due date for payment of interest to the next due date for payment of interest in respect of that Tranche under this Agreement); and
|
|
(b)
|
in relation paragraph (b), a fraction of which the numerator is one and the denominator is the number of months between fixed rate payments specified in the relevant Confirmation.
|
18.3
|
Shortfall in Earnings. If the aggregate Earnings of the Ships received in the Earnings Accounts it are insufficient in any month for the required amount to be transferred to the Retention Account and/or the Swap Account under Clause 18.2, the Borrowers shall make up the amount of the insufficiency on demand from the Agent.
|
18.4
|
Application of retentions. Until an Event of Default or a Potential Event of Default occurs, the Agent shall on each Repayment Date and on each due date for the payment of interest under this Agreement or, as the case may be, the net amount which is payable by the Borrowers to the Swap Bank in respect of any Designated Transaction on the next due date for payment of such amount under the relevant Confirmation distribute to:
|
(a)
|
the Lenders in accordance with Clause 16.4 so much of the then balance on the Retention Account as equals:
|
|
(i)
|
the Repayment Instalment due on that Repayment Date pursuant to Clause 8.1; or
|
|
(ii)
|
the amount of interest in respect of the Loan payable on that interest payment date,
|
|
in discharge of the Borrowers' liability for that Repayment Instalment or that interest; and
|
(b)
|
the Swap Bank in accordance with Clause 16.4 so much of the then balance on the Swap Account as equals of the net amount which is payable by the Borrowers to the Swap Bank
|
|
in respect of any Designated Transaction on the next due date for payment of such amount under the relevant Confirmation.
|
18.5
|
Interest accrued on the Accounts. Any credit balance on each Account shall bear interest at the rate from time to time offered by the Agent to its customers for Dollar deposits of similar amounts and for periods similar to those for which such balances appear to the Agent likely to remain on that Account.
|
18.6
|
Release of accrued interest. Interest accruing on each Account under Clause 18.5 shall be released to the Borrowers on each Repayment Date unless an Event of Default or a Potential Event of Default has occurred or, in the case of the Retention Account and the Swap Account, the then credit balance thereon is less than what would have been the balance had the full amount required by Clause 18.2 (and Clause 18.3, if applicable) been transferred in that and each previous month.
|
18.7
|
Location of Accounts. Each Borrower shall promptly:
|
(a)
|
comply with any requirement of the Agent as to the location or re-location of the Accounts (or any of them); and
|
(b)
|
execute any documents which the Agent specifies to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Accounts.
|
18.8
|
Debits for fees, expenses etc. The Agent shall be entitled (but not obliged) from time to time to debit any Earnings Account without prior notice in order to discharge any amount due and payable under Clause 20.1(b) or 21 to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clause 20.1(b) or 21 and, in the case of Clause 20.1(b), the Borrowers shall ensure that the aggregate amount standing to the credit of the Earnings Accounts at the relevant time is sufficient for the payment of the second instalment of the arrangement fee referred to in that Clause.
|
19
|
EVENTS OF DEFAULT
|
19.1
|
Events of Default. An Event of Default occurs if:
|
(a)
|
any Borrower or any Security Party fails to pay when due or (if so payable) on demand any sum payable under a Finance Document or under any document relating to a Finance Document; or
|
(b)
|
any breach occurs of Clause9.2, 10.17, 10.18, 11.2, 11.3, 11.6, 11.7, 11.18, 11.19, 12.2, 12.3 or 15.2 or clauses 12.3 or 12.4 of the Corporate Guarantee; or
|
(c)
|
any breach by any Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs(a) or (b)) which, in the opinion of the Majority Lenders, is capable of remedy, and such default continues unremedied 10 days after written notice from the Agent requesting action to remedy the same; or
|
(d)
|
(subject to any applicable grace period specified in the Finance Document) any breach by any Borrower or any Security Party occurs of any provision of a Finance Document (other than a breach falling within paragraphs (a), (b) or (c)); or
|
(e)
|
any representation, warranty or statement made or repeated by, or by an officer of, a Borrower or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading when it is made or repeated ; or
|
(f)
|
any of the following occurs in relation to any Financial Indebtedness of a Relevant Person exceeding $1,000,000 (or the equivalent in any other currency) in aggregate in respect of that Relevant Person:
|
|
(i)
|
any Financial Indebtedness of a Relevant Person is not paid when due; or
|
|
(ii)
|
any Financial Indebtedness of a Relevant Person becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or
|
|
(iii)
|
a lease, hire purchase agreement or charter creating any Financial Indebtedness of a Relevant Person is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or
|
|
(iv)
|
any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of a Relevant Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or
|
|
(v)
|
any Security Interest securing any Financial Indebtedness of a Relevant Person becomes enforceable; or
|
(g)
|
any of the following occurs in relation to a Relevant Person:
|
|
(i)
|
a Relevant Person becomes, in the opinion of the Majority Lenders, unable to pay its debts as they fall due; or
|
|
(ii)
|
any assets of a Relevant Person (having value in total exceeding $500,000 or the equivalent in any other currency) are subject to any form of execution, attachment, arrest, sequestration or distress or any form of freezing order; or
|
|
(iii)
|
any administrative or other receiver is appointed over any asset of a Relevant Person; or
|
|
(iv)
|
an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person; or
|
|
(v)
|
any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person is insolvent or likely to become insolvent is made by a Relevant Person or by the directors of a Relevant Person or, in any proceedings, by a lawyer acting for a Relevant Person; or
|
|
(vi)
|
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or
|
|
(vii)
|
a resolution is passed, an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by (aa) a Relevant Person, (bb) the members or directors of a Relevant Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person, or (dd) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph does not apply to a fully solvent winding up of
|
|
(viii)
|
an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of a provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not with a view to some other insolvency law procedure being implemented instead and either (aa) the application or petition is dismissed or withdrawn within 30 days of being made or presented, or (bb) within 30 days of the administration notice being given or filed, or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in both cases (aa) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject of any actual, interim or pending insolvency law procedure; or
|
|
(ix)
|
a Relevant Person or its directors take any steps (whether by making or presenting an application or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by the filing of documents with a court, by means of a contract or in any other way at all; or
|
|
(x)
|
any meeting of the members or directors, or of any committee of the board or senior management, of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the members, directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions materialise or fail to materialise; or
|
|
(xi)
|
in a country other than England, any event occurs, any proceedings are opened or commenced or any step is taken which, in the opinion of the Majority Lenders is similar to any of the foregoing; or
|
(h)
|
any Borrower ceases or suspends carrying on its business or a part of its business which, in the opinion of the Majority Lenders, is material in the context of this Agreement; or
|
(i)
|
it becomes unlawful in any Pertinent Jurisdiction or impossible:
|
|
(i)
|
for any Borrower, the Corporate Guarantor or any other Security Party to discharge any liability under a Finance Document or to comply with any other obligation which the Majority Lenders consider material under a Finance Document; or
|
|
(ii)
|
for the Agent, the Security Trustee, the Lenders or the Swap Bank to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or
|
(j)
|
any official consent necessary to enable any Borrower to own, operate or charter its Ship or to enable any Borrower or any Security Party to comply with any provision which the Majority Lenders consider material of a Finance Document or a Shipbuilding Contract or an Initial Charter is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or
|
(k)
|
it appears to the Majority Lenders that, without their prior consent, a change has occurred or probably has occurred after the date of this Agreement in the legal and beneficial ownership of any of the shares in any Borrower or in the control of the voting rights attaching to any of those shares; or
|
(l)
|
the shares of the Corporate Guarantor or Ocean Rig cease to be listed on NASDAQ; or
|
(m)
|
any of the Initial Charters is terminated or becomes invalid or unenforceable or otherwise ceases to be in full force and effect for any reason prior to its stated termination date;
|
(n)
|
any provision which the Majority Lenders consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third party claim or interest; or
|
(o)
|
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
|
(p)
|
any of the following occurs in relation to the Master Agreement:
|
|
(i)
|
notice of an Early Termination Date is given by the Lender under Section 6(a) of the Master Agreement; or
|
|
(ii)
|
a person entitled to do so gives notice of Early Termination Date under Section (b) of the Master Agreement; or
|
|
(iii)
|
an Event of Default (as defined in Section 14 of the Master Agreement) occurs; or
|
|
(iv)
|
the Master Agreement is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason except with the consent of the Lender; or
|
(q)
|
any other event occurs or any other circumstances arise or develop including, without limitation:
|
|
(i)
|
a change in the financial position, state of affairs or prospects of any Borrower, the Corporate Guarantor, any other Security Party or the Group; or
|
|
(ii)
|
any accident or other event involving any Ship; or
|
|
(iii)
|
the threat or commencement of legal or administrative action involving a Borrower, a Ship, the Approved Manager or any Security Party,
|
19.2
|
Actions following an Event of Default. On, or at any time after, the occurrence of an Event of Default:
|
(a)
|
the Agent may, and if so instructed by the Majority Lenders, the Agent shall:
|
|
(i)
|
serve on the Borrowers a notice stating that the Commitments and all other obligations of each Lender to the Borrowers under this Agreement are cancelled; and/or
|
|
(ii)
|
serve on the Borrowers a notice stating that the Loan, all accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or
|
|
(iii)
|
take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or
|
(b)
|
the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a)(i)or (a)(ii), the Security Trustee, the Agent, the Mandated Lead Arranger and/or the Lenders and/or the Swap Bank are entitled to take under any Finance Document or any applicable law.
|
19.3
|
Termination of Commitments. On the service of a notice under Clause 19.2(a)(i), the Commitments and all other obligations of each Lender to the Borrowers under this Agreement shall be cancelled.
|
19.4
|
Acceleration of Loan. On the service of a notice under Clause 19.2(a)(ii), the Loan, all accrued interest and all other amounts accrued or owing from the Borrowers or any Security Party under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.
|
19.5
|
Multiple notices; action without notice. The Agent may serve notices under Clauses 19.2(a)(i) or 19.2(a)(ii) simultaneously or on different dates and it and/or the Security Trustee may take any action referred to in Clause 19.2 if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
|
19.6
|
Notification of Creditor Parties and Security Parties. The Agent shall send to each Lender, the Swap Bank, the Security Trustee and each Security Party a copy or the text of any notice which the Agent serves on the Borrowers under Clause 19.2; but the notice shall become effective when it is served on the Borrowers, and no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide any Borrower or any Security Party with any form of claim or defence.
|
19.7
|
Creditor Party's rights unimpaired. Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders or the Swap Bank under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clause 3.1.
|
19.8
|
Exclusion of Creditor Party liability. No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to a Borrower or a Security Party:
|
(a)
|
for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or
|
(b)
|
as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset,
|
19.9
|
Relevant Persons. In this Clause 19, a "Relevant Person" means a Borrower, the Corporate Guarantor, any other Security Party and any other member of the Group.
|
19.10
|
Interpretation. In Clause 19.1(f) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(g) "petition" includes an application.
|
19.11
|
Position of Swap Bank. Neither the Agent nor the Security Trustee shall be obliged, in connection with any action taken or proposed to be taken under or pursuant to the foregoing provisions of this Clause 19, to have any regard to the requirements of the Swap Bank except to the extent that the Swap Bank is also a Lender.
|
20
|
FEES AND EXPENSES
|
20.1
|
Arrangement fee. The Borrowers shall pay to the Agent:
|
(a)
|
a non-refundable agency fee in the amount of $25,000 which shall be payable annually in advance on the date on which a Successful Syndication is achieved (as evidenced by the delivery to the Agent of a duly executed Transfer Certificate) and on each anniversary thereof;
|
(b)
|
a non-refundable arrangement fee of $1,095,672 (representing 1.25 per cent. of the Total Commitments) in two equal instalments of $547,836 each as follows:
|
|
(i)
|
the first instalment has been paid on the date on which the Borrowers accepted the Agent's commitment letter in respect of the Loan (being 20 February 2012, the "Acceptance Date"); and
|
|
(ii)
|
the second instalment shall be paid on the Drawdown Date of the First Tranche; and
|
(c)
|
quarterly in arrears during the period commencing on the Acceptance Date to the earlier of (i) the last day of the Availability Period and (ii) the Drawdown Date of the Third Tranche, a non-refundable commitment fee at the rate of 1.14 per cent. per annum on the aggregate amount of the available but undrawn Total Commitments for distribution among the Lenders pro rata to their Commitments.
|
20.2
|
Costs of negotiation, preparation etc. The Borrowers shall pay to the Agent on its demand the amount of all expenses incurred by the Agent or the Security Trustee in connection with the negotiation, preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document.
|
20.3
|
Costs of variations, amendments, enforcement etc. The Borrowers shall pay to the Agent, on the Agent's demand, for the account of the Creditor Party concerned, the amount of all expenses incurred by a Creditor Party in connection with:
|
(a)
|
any amendment or supplement (or any proposal for such an amendment or supplement) requested (or, in the case of a proposal, made) by or on behalf of the Borrowers and relating to a Finance Document or any other Pertinent Document;
|
(b)
|
any consent, waiver or suspension of rights by the Lenders, the Swap Bank, the Majority Lenders or the Creditor Party concerned or any proposal for any of the foregoing
|
(c)
|
the valuation of any security provided or offered under Clause 15 or any other matter relating to such security; or
|
(d)
|
any step taken by the Lender concerned or the Swap Bank with a view to the preservation, protection, exercise or enforcement of any rights or Security Interest created by a Finance Document or for any similar purpose including, without limitation, any proceedings to recover or retain proceeds of enforcement or any other proceedings following enforcement proceedings until the date all outstanding indebtedness to the Creditor Parties under the Finance Documents, the Master Agreement and any other Pertinent Document is repaid in full.
|
20.4
|
Documentary taxes. The Borrowers shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent's demand, fully indemnify each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrowers to pay such a tax.
|
20.5
|
Financial Services Authority fees. The Borrowers shall pay to the Agent, on the Agent's demand, for the account of the Lender concerned the amounts which the Agent from time to time notifies the Borrowers that a Lender has notified the Agent to be necessary to compensate it for the cost attributable to its Contribution resulting from the imposition from time to time under or pursuant to the Bank of England Act 1998 and/or by the Bank of England and/or by the Financial Services Authority (or other United Kingdom governmental authorities or agencies) of a requirement to pay fees to the Financial Services Authority calculated by reference to liabilities used to fund its Contribution.
|
20.6
|
Certification of amounts. A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 20 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
20.7
|
Extraordinary management time. The Borrowers shall pay to the Agent on its demand compensation in respect of the reasonable and documented amount of time which the management of either Servicing Bank has spent in connection with a matter covered by Clause 20.3 and which exceeds the amount of time which would ordinarily be spent in the performance of the relevant Servicing Bank's routine functions. Any such compensation shall be based on such reasonable daily or hourly rates as the Agent may notify to the Borrowers and is in addition to any fee paid or payable to the relevant Servicing Bank.
|
21
|
INDEMNITIES
|
21.1
|
Indemnities regarding borrowing and repayment of Loan. The Borrowers shall fully indemnify the Agent and each Lender on the Agent's demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:
|
(a)
|
a Tranche not being borrowed on the date specified in the relevant Drawdown Notice for any reason other than a default by the Lender claiming the indemnity after the relevant Drawdown Notice has been served in accordance with the provisions of this Agreement;
|
(b)
|
the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;
|
(c)
|
any failure (for whatever reason) by the Borrowers to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrowers on the amount concerned under Clause 7); and
|
(d)
|
the occurrence and/or continuance of an Event of Default or a Potential Event of Default and/or the acceleration of repayment of the Loan under Clause 19,
|
21.2
|
Break Costs. If a Lender (the "Notifying Lender") notifies the Agent that as a consequence of receipt or recovery of all or any part of the Loan (a "Payment") on a day other than the last day of an Interest Period applicable to the sum received or recovered the Notifying Lender has or will, with effect from a specified date, incur Break Costs:
|
(a)
|
the Agent shall promptly notify the Borrowers of a notice it receives from a Notifying Lender under this Clause 21.2;
|
(b)
|
the Borrower shall, within 3 Business Days of the Agent's demand, pay to the Agent for the account of the Notifying Lender the amount of such Break Costs; and
|
(c)
|
the notifying Lender shall, as soon as reasonably practicable, following a request by the Borrowers, provide a certificate confirming the amount of the Notifying Lender's Break Costs for the Interest Period in which they accrue, such certificate to be, in the absence of manifest error, conclusive and binding on the Borrowers.
|
|
(i)
|
the interest which the Notifying Lender, should have received in respect of the sum received or recovered from the date of receipt or recovery of such Payment to the last day of the then current Interest Period applicable to the sum received or recovered had such Payment been made on the last day of such Interest Period;
|
|
(ii)
|
the amount which the Notifying Lender, would be able to obtain by placing an amount equal to such Payment on deposit with a leading bank in the London Interbank Market for a period commencing on the Business Day following receipt or recovery of such Payment (as the case may be) and ending on the last day of the then current Interest Period applicable to the sum received or recovered.
|
21.3
|
Other breakage costs. Without limiting its generality, Clause 21.1 covers any claim, expense, liability or loss, including a loss of a prospective profit, incurred by a Lender in borrowing, liquidating or re-employing deposits from third parties acquired, contracted for or arranged to fund, effect or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount) other than claims, expenses, liabilities and losses which are shown to have been
|
21.4
|
Miscellaneous indemnities. The Borrowers shall fully indemnify each Creditor Party severally on their respective demands, without prejudice to any of their other rights under any of the Finance Documents, in respect of all claims, expenses, liabilities and losses which may be made or brought against or sustained or incurred by a Creditor Party, in any country, as a result of or in connection with:
|
(a)
|
any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document;
|
(b)
|
investigating any event which the Creditor Party concerned reasonably believes constitutes an Event of Default or Potential Event of Default;
|
(c)
|
acting or relying on any notice, request or instruction which the Creditor Party concerned reasonably believes to be genuine, correct and appropriately authorised; or
|
(d)
|
any other Pertinent Matter,
|
21.5
|
Environmental Indemnity. Without prejudice to its generality, Clause 21.3 covers any claims, demands, proceedings, liabilities, taxes, losses or expenses of every kind which arise, or are asserted, under or in connection with any law relating to safety at sea, pollution or the protection of the environment, the ISM Code or the ISPS Code.
|
21.6
|
Currency indemnity. If any sum due from any Borrower or any Security Party to a Creditor Party under a Finance Document or under any order, award or judgment relating to a Finance Document (a "Sum") has to be converted from the currency in which the Finance Document provided for the Sum to be paid (the "Contractual Currency") into another currency (the "Payment Currency") for the purpose of:
|
(a)
|
making, filming or lodging any claim or proof against a Borrower or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or
|
(b)
|
obtaining an order, judgment or award from any court or other tribunal in relation to any litigation or arbitration proceedings; or
|
(c)
|
enforcing any such order, judgment or award,
|
21.7
|
Application to Master Agreement. For the avoidance of doubt, Clause 21.4 does not apply in respect of sums due from the Borrowers to the Swap Bank under or in connection with the Master Agreement as to which sums the provisions of section 8 (Contractual Currency) of the Master Agreement shall apply.
|
21.8
|
Certification of amounts. A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima facie evidence that the amount, or aggregate amount, is due.
|
21.9
|
Sums deemed due to a Lender. For the purposes of this Clause 21, a sum payable by the Borrowers to the Agent or the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.
|
22
|
NO SET-OFF OR TAX DEDUCTION
|
22.1
|
No deductions. All amounts due from the Borrowers under a Finance Document shall be paid:
|
(a)
|
without any form of set-off, counter-claim or condition; and
|
(b)
|
free and clear of any tax deduction except a tax deduction which a Borrower is required by law to make.
|
22.2
|
Grossing-up for taxes. If, at any time, a Borrower is required by law, regulation or regulatory requirement to make a tax deduction from any payment due under a Finance Document:
|
(a)
|
that Borrower shall notify the Agent as soon as it becomes aware of the requirement;
|
(b)
|
the amount due in respect of the payment shall be increased by the amount necessary to ensure that, after the making of such tax deduction, each Creditor Party receives on the due date for such payment (and retains free from any liability relating to the tax deduction) a net amount which is equal to the full amount which it would have received had no such tax deduction been required to be made; and
|
(c)
|
that Borrower shall pay the full amount of the tax required to be deducted to the appropriate taxation authority promptly in accordance with the relevant law, regulation or regulatory requirement, and in any event before any fine or penalty arises..
|
22.3
|
Indemnity and evidence of payment of taxes. The Borrowers shall fully indemnify each Creditor Party on the Agent's demand in respect of all claims, expenses, liabilities and losses incurred by any Creditor Party by reason of any failure of the Borrowers (or any of them) to make any tax deduction or by reason of any increased payment not being made on the due date for such payment in accordance with Clause 22.2. Within 30 days after making any tax deduction, the Borrowers or, as the case may be, the relevant Borrower shall deliver to the Agent any receipts, certificates or other documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority.
|
22.4
|
Exclusion of tax on overall net income. In this Clause 22 "tax deduction" means any deduction or withholding from any payment due under a Finance Document for or on account of any present or future tax except tax on a Creditor Party's overall net income.
|
22.5
|
Application to Master Agreement. For the avoidance of doubt, Clause 22 does not apply in respect of sums due from the Borrowers to the Swap Bank under or in connection with the Master Agreement as to which sums the provisions of section 2(d) (Deduction or Withholding for Tax) of the Master Agreement shall apply.
|
23
|
ILLEGALITY, ETC
|
23.1
|
Illegality. This Clause 23 applies if a Lender (the "Notifying Lender") notifies the Agent that it has become, or will with effect from a specified date, become:
|
(a)
|
unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or
|
(b)
|
contrary to, or inconsistent with, any regulation,
|
23.2
|
Notification of illegality. The Agent shall promptly notify the Borrowers, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 23.1 which the Agent receives from the Notifying Lender.
|
23.3
|
Prepayment; termination of Commitment. On the Agent notifying the Borrowers under Clause 23.2, the Notifying Lender's Commitment shall be immediately cancelled; and thereupon or, if later, on the date specified in the Notifying Lender's notice under Clause 23.1 as the date on which the notified event would become effective the Borrowers shall prepay the Notifying Lender's Contribution on the last day of the then current Interest Period in accordance with Clause 8.
|
23.4
|
Mitigation. If circumstances arise which would result in a notification under Clause 23.1 then, without in any way limiting the rights of the Notifying Lender under Clause 23.3 the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under this Agreement and the Finance Documents to another office or financial institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might:
|
(a)
|
have an adverse effect on its business, operations or financial condition; or
|
(b)
|
involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or
|
(c)
|
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
|
24
|
INCREASED COSTS
|
24.1
|
Increased costs. This Clause 24 applies if a Lender (the "Notifying Lender") notifies the Agent that the Notifying Lender considers that as a result of:
|
(a)
|
the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Lender's overall net income); or
|
(b)
|
complying with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement,
|
24.2
|
Meaning of "increased cost". In this Clause 24, "increased cost" means, in relation to a Notifying Lender:
|
(a)
|
an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or a Transfer Certificate, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums;
|
(b)
|
a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital; or
|
(c)
|
an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender's Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or
|
(d)
|
a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender under this Agreement; or
|
24.3
|
Notification to Borrowers of claim for increased costs. The Agent shall promptly notify the Borrowers and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 24.1.
|
24.4
|
Payment of increased costs. The Borrowers shall pay to the Agent, on the Agent's demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrowers that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
|
24.5
|
Notice of prepayment. If the Borrowers are not willing to continue to compensate the Notifying Lender for the increased cost under Clause 24.4, the Borrowers may give the Agent not less than 14 days' notice of their intention to prepay the Notifying Lender's Contribution at the end of an Interest Period.
|
24.6
|
Prepayment; termination of Commitment. A notice under Clause 24.5 shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrowers' notice of intended prepayment; and:
|
(a)
|
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and
|
(b)
|
on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Notifying Lender's Contribution, together with accrued interest thereon at the applicable rate plus the Margin and the Mandatory Cost (if any).
|
24.7
|
Application of prepayment. Clause 8 shall apply in relation to the prepayment.
|
25
|
SET-OFF
|
25.1
|
Application of credit balances. Each Creditor Party may without prior notice:
|
(a)
|
apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of a Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from that Borrower to that Creditor Party under any of the Finance Documents; and
|
(b)
|
for that purpose:
|
|
(i)
|
break, or alter the maturity of, all or any part of a deposit of that Borrower;
|
|
(ii)
|
convert or translate all or any part of a deposit or other credit balance into Dollars; and
|
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.
|
25.2
|
Existing rights unaffected. No Creditor Party shall be obliged to exercise any of its rights under Clause 25.1; and those rights shall be without prejudice and in addition to any right of set-off, combination of accounts, charge, lien or other right or remedy to which a Creditor Party is entitled (whether under the general law or any document).
|
25.3
|
Sums deemed due to a Lender. For the purposes of this Clause 25, a sum payable by the Borrowers to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender's proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.
|
25.4
|
No Security Interest. This Clause 25 gives the Creditor Parties a contractual right of set-off only, and does not create any equitable charge or other Security Interest over any credit balance of any Borrower.
|
26
|
TRANSFERS AND CHANGES IN LENDING OFFICES
|
26.1
|
Transfer by Borrower. No Borrower may assign or transfer any of its rights, liabilities or obligations under any Finance Document.
|
26.2
|
Transfer by a Lender. Subject to Clause 26.4, a Lender (the "Transferor Lender") may at any time, without needing the consent of any Borrower or any Security Party, cause:
|
(a)
|
its rights in respect of all or part of its Contribution; or
|
(b)
|
its obligations in respect of all or part of its Commitment; or
|
(c)
|
a combination of (a) and (b); or
|
(d)
|
all or part of its credit risk under this Agreement and the other Finance Documents,
|
26.3
|
Transfer Certificate, delivery and notification. As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):
|
(a)
|
sign the Transfer Certificate on behalf of itself, the Borrowers, the Security Parties, the Security Trustee and each of the other Lenders and the Swap Bank;
|
(b)
|
on behalf of the Transferee Lender, send to each Borrower and each Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy of it; and
|
(c)
|
send to the Transferee Lender copies of the letters or faxes sent under paragraph (b) above.
|
26.4
|
Effective Date of Transfer Certificate. A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date, Provided that it is signed by the Agent under Clause 26.3 on or before that date.
|
26.5
|
No transfer without Transfer Certificate. Except as provided in Clause 26.16, no assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, any Borrower, any Security Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
|
26.6
|
Lender re-organisation; waiver of Transfer Certificate. However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the "successor"), the Agent may, if it sees fit, by notice to the successor and the Borrowers and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent's notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender.
|
26.7
|
Effect of Transfer Certificate. A Transfer Certificate takes effect in accordance with English law as follows:
|
(a)
|
to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents (other than the Master Agreement) are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender's title and of any rights or equities which any Borrower or any Security Party had against the Transferor Lender;
|
(b)
|
the Transferor Lender's Commitment is discharged to the extent specified in the Transfer Certificate;
|
(c)
|
the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;
|
(d)
|
the Transferee Lender becomes bound by all the provisions of the Finance Documents (other than the Master Agreement) which are applicable to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;
|
(e)
|
any part of the Loan which the Transferee Lender advances after the Transfer Certificate's effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor's title and any rights or equities of any Borrower or any Security Party against the Transferor Lender had not existed;
|
(f)
|
the Transferee Lender becomes entitled to all the rights under the Finance Documents (other than the Master Agreement) which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.6 and Clause 20, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and
|
(g)
|
in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document (other than the Master Agreement), the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.
|
26.8
|
Maintenance of register of Lenders. During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 26.4) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and the Borrowers during normal banking hours, subject to receiving at least 3 Business Days' prior notice.
|
26.9
|
Reliance on register of Lenders. The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.
|
26.10
|
Authorisation of Agent to sign Transfer Certificates. The Borrowers, the Security Trustee, each Lender and the Swap Bank irrevocably authorises the Agent to sign Transfer Certificates on its behalf. The Borrower and each Security Party irrevocably agrees to the transfer procedures set out in this Clause 26 and to the extent the cooperation of the Borrowers and/or any Security Party shall be required to effect any such transfer, the Borrowers and such Security Party shall take all necessary steps to afford such cooperation Provided that this shall not result in any additional costs to the Borrowers or such Security Party.
|
26.11
|
Registration fee. In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $2,500 from the Transferor Lender or (at the Agent's option) the Transferee Lender.
|
26.12
|
Sub-participation; subrogation assignment. A Lender may sub-participate all or any part of its rights and/or obligations under or in connection with the Finance Documents (other than the Master Agreement) without the consent of, or any notice to, any Borrower, any Security Party, the Agent or the Security Trustee or any other Creditor Party; and the Lenders may assign, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them.
|
26.13
|
Disclosure of information. A Lender may disclose to a potential Transferee Lender or sub-participant as well as, where relevant, to rating agencies, trustees and accountants, any financial or other information which that Lender has received in relation to the Loan, the Borrowers (or any of them), any Security Party or their affairs and collateral or security provided under or in connection with any Finance Document, their financial circumstances and any other information whatsoever, as that Lender may deem reasonably necessary or appropriate in connection with the potential syndication, the assessment of the credit risk and the ongoing monitoring of the Loan by any potential Transferee Lender and that Lender shall be released from its obligation of secrecy and from banking confidentiality.
|
26.14
|
Change of lending office. A Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of:
|
(a)
|
the date on which the Agent receives the notice; and
|
(b)
|
the date, if any, specified in the notice as the date on which the change will come into effect.
|
26.15
|
Notification. On receiving such a notice, the Agent shall notify the Borrowers and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.
|
26.16
|
Security over Lenders' rights. In addition to the other rights provided to Lenders under this Clause 26, each Lender may without consulting with or obtaining consent from any Borrower or any Security Party, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document (other than the Master Agreement) to secure obligations of that Lender including, without limitation:
|
(a)
|
any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and
|
(b)
|
in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
|
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or
|
|
(ii)
|
require any payments to be made by any Borrower or any Security Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
|
26.17
|
Replacement of Reference Bank. If the Reference Bank ceases to be a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 then, unless the Borrowers the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting the Borrowers shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect, the first-mentioned Reference Bank's appointment shall cease to be effective.
|
27
|
VARIATIONS AND WAIVERS
|
27.1
|
Required consents.
|
(a)
|
Subject to Clause 27.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Borrowers and any such amendment or waiver will be binding on all Creditor Parties and the Borrowers.
|
(b)
|
Any instructions given by the Majority Lenders will be binding on all the Creditor Parties.
|
(c)
|
The Agent may effect, on behalf of any Creditor Party, any amendment or waiver permitted by this Clause.
|
27.2
|
Exceptions
|
(a)
|
An amendment or waiver that has the effect of changing or which relates to:
|
|
(i)
|
the definition of "Majority Lenders" or "Finance Documents" in Clause 1.1 (Definitions);
|
|
(ii)
|
an extension to the date of payment of any amount under the Finance Documents;
|
|
(iii)
|
a reduction in the Margin or a reduction in the amount of any payment of principal, interest fees, commission or other amount payable under any of the Finance Documents;
|
|
(iv)
|
an increase in or an extension of any Lender's Commitment;
|
|
(v)
|
any provision which expressly requires the consent of all the Lenders; or
|
|
(vi)
|
Clause 3 (Position of the Lenders and Swap Banks), Clause 11.5, 11.6 and 11.7, Clause 26 (Transfers and Changes in Lending Offices) or this Clause 27.2;
|
|
(vii)
|
any release of any Security Interest, guarantee, indemnities or subordination arrangement created by any Finance Document;
|
|
(viii)
|
any change of the currency in which the Loan is provided or any amount is payable under any of the Finance Documents;
|
|
(ix)
|
extend the Availability Period;
|
|
(x)
|
change Clauses 22 (No Set-Off or Tax Deduction) and 16.4 (Distribution of payments to Creditor Parties).
|
(b)
|
An amendment or waiver which relates to the rights or obligations of the Agent, the Arranger or the Security Trustee may not be effected without the consent of the Agent, the Arranger or the Security Trustee, as the case may be.
|
27.3
|
Exclusion of other or implied variations. Except for a document which satisfies the requirements of Clauses 27.1 and 27.2, no document, and, subject to Clause 27.4, no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:
|
(a)
|
a provision of this Agreement or another Finance Document; or
|
(b)
|
an Event of Default; or
|
(c)
|
a breach by a Borrower or a Security Party of an obligation under a Finance Document or the general law; or
|
(d)
|
any right or remedy conferred by any Finance Document or by the general law,
|
27.4
|
Deemed consent. With respect to any amendment, variation, waiver, suspension or limit requested by any party to this Agreement and which requires the approval of all the Lenders or the Majority Lenders (as the case may be), the Agent shall provide each Lender with written notice of such request accompanied by such detailed background information as may be reasonably necessary (in the opinion of the Agent) to determine whether to approve such action. A Lender shall be deemed to have approved such action if such Lender fails to object to such action by written notice to the Agent within 10 days of that Lender's receipt of the Agent's notice or such other time as the Agent may state in the relevant notice as being the time available for approval of such action.
|
28
|
NOTICES
|
28.1
|
General. Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter or fax; and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
|
28.2
|
Addresses for communications. A notice by letter or fax shall be sent:
|
(a)
|
to the Borrowers:
|
c/o the Corporate Guarantor
(Athens office)
Omega Building
80 Kifissias Avenue
Athens
Greece
|
|
|
Facsimile No: +30 210 809 0575
Attn: The Chief Financial Officer
|
(b)
|
to a Lender:
|
At the address below its name in Schedule 1 or (as
the case may require) in the relevant Transfer
Certificate.
|
(c)
|
to the Agent and Security Trustee:
|
HSH Nordbank AG
Structuring and Analysis Greece/Southern Europe
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
Fax No: +49 40 3333 34118
|
(d)
|
to the Swap Bank:
|
Martensdamm 6
D-24103 Kiel
Germany
Fax No: +49 40 3333 34086
|
28.3
|
Effective date of notices. Subject to Clauses 28.4 and 28.5:
|
(a)
|
a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered; and
|
(b)
|
a notice which is sent by fax shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed.
|
28.4
|
Service outside business hours. However, if under Clause 28.3 a notice would be deemed to be served:
|
(a)
|
on a day which is not a business day in the place of receipt; or
|
(b)
|
on such a business day, but after 5 p.m. local time,
|
28.5
|
Illegible notices. Clauses 28.3 and 28.4do not apply if the recipient of a notice notifies the sender within 1 hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.
|
28.6
|
Valid notices. A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if:
|
(a)
|
the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or
|
(b)
|
in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.
|
28.8
|
Electronic communication. Any communication to be made between the Agent and a Lender or Swap Bank under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Creditor Party:
|
(a)
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(b)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
(c)
|
notify each other of any change to their respective addresses or any other such information supplied to them.
|
28.9
|
English language. Any notice under or in connection with a Finance Document shall be in English.
|
28.10
|
Meaning of "notice". In this Clause 28, "notice" includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
|
29
|
JOINT AND SEVERAL LIABILITY
|
29.1
|
General. All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be several and, if and to the extent consistent with Clause 29.2, joint.
|
29.2
|
No impairment of Borrowers' obligations. The liabilities and obligations of a Borrower shall not be impaired by:
|
(a)
|
this Agreement being or later becoming void, unenforceable or illegal as regards the other Borrowers;
|
(b)
|
any Lender, the Swap Bank or the Security Trustee entering into any rescheduling, refinancing or other arrangement of any kind with the other Borrowers;
|
(c)
|
any Lender, the Swap Bank or the Security Trustee releasing the other Borrowers or any Security Interest created by a Finance Document; or
|
(d)
|
any combination of the foregoing.
|
29.3
|
Principal debtors. Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and the Finance Documents and no Borrower shall in any circumstances be construed to be a surety for the obligations of the other Borrowers under this Agreement.
|
29.4
|
Subordination. Subject to Clause 29.5, during the Security Period, no Borrower shall:
|
(a)
|
claim any amount which may be due to it from the other Borrowers whether in respect of a payment made, or matter arising out of, this Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or
|
(b)
|
take or enforce any form of security from the other Borrowers for such an amount, or in any other way seek to have recourse in respect of such an amount against any asset of the other Borrowers; or
|
(c)
|
set off such an amount against any sum due from it to the other Borrowers; or
|
(d)
|
prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving the other Borrower or other Security Party; or
|
(e)
|
exercise or assert any combination of the foregoing.
|
29.5
|
Borrowers' required action. If during the Security Period, the Agent, by notice to a Borrower, requires it to take any action referred to in paragraphs (a) to (d) of Clause 29.4, in relation to the other Borrowers, that Borrower shall take that action as soon as practicable after receiving the Agent's notice.
|
30
|
SUPPLEMENTAL
|
30.1
|
Rights cumulative, non-exclusive. The rights and remedies which the Finance Documents give to each Creditor Party are:
|
(a)
|
cumulative;
|
(b)
|
may be exercised as often as appears expedient; and
|
(c)
|
shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.
|
30.2
|
Severability of provisions. If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.
|
30.3
|
Counterparts. A Finance Document may be executed in any number of counterparts.
|
30.4
|
Third party rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
|
30.5
|
Benefit and binding effect. The terms of this Agreement shall be binding upon, and shall enure to the benefit of, the parties hereto and their respective (including subsequent) successors and permitted assigns and transferees.
|
31
|
LAW AND JURISDICTION
|
31.1
|
English law. This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
|
31.2
|
Exclusive English jurisdiction. Subject to Clause 31.3, the courts of England shall have exclusive jurisdiction to settle any Dispute.
|
31.3
|
Choice of forum for the exclusive benefit of the Creditor Parties. Clause 31.2 is for the exclusive benefit of the Creditor Parties, each of which reserves the right:
|
(a)
|
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
|
(b)
|
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
|
31.4
|
Process agent. Each Borrower irrevocably appoints Ince Process Agents Limited at its registered office for the time being, presently at International House, 1 St. Katherine's Way, London E1W 1AY, England to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with a Dispute.
|
31.5
|
Creditor Party rights unaffected. Nothing in this Clause31 shall exclude or limit any right which any Creditor Party may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
|
31.6
|
Meaning of "proceedings" and "Dispute". In this Clause 31, "proceedings" means proceedings of any kind, including an application for a provisional or protective measure and a "Dispute" means any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement) or any non-contractual obligation arising out of or in connection with this Agreement.
|
Lender
|
Lending Office
|
Commitment
(US Dollars)
|
HSH Nordbank AG
|
Gerhart-Hauptmann-Platz 50
20095 Hamburg
Germany
|
87,653,740
(subject to Clause 2.4)
|
1
|
We refer to the loan agreement (the "Loan Agreement") dated [l] 2012 and made between ourselves, as Borrowers, the Lenders referred to therein, and yourselves as Agent, Mandated Lead Arranger, as Security Trustee and as Swap Bank in connection with a facility of up to US$87,653,740. Terms defined in the Loan Agreement have their defined meanings when used in this Drawdown Notice.
|
2
|
We request to borrow the [First][Second][Third] Tranche as follows:
|
(a)
|
Amount of Tranche: US$[l];
|
(b)
|
Drawdown Date: [l];
|
(c)
|
Duration of the first Interest Period shall be [l] months; and
|
(d)
|
Payment instructions : account in our name and numbered [l] with [l] of [l].
|
3
|
We represent and warrant that:
|
(a)
|
the representations and warranties in Clause 10 of the Loan Agreement would remain true and not misleading if repeated on the date of this notice with reference to the circumstances now existing; and
|
(b)
|
no Event of Default or Potential Event of Default has occurred or will result from the borrowing of that Tranche.
|
4
|
This notice cannot be revoked without the prior consent of the Majority Lenders.
|
5
|
[We authorise you to deduct the [agency][arrangement][commitment] fee referred to in Clause 20.1 in accordance with Clause 18.8]
|
1
|
A duly executed original of:
|
(a)
|
this Agreement;
|
(b)
|
the Master Agreement;
|
(c)
|
the Master Agreement Assignment;
|
(d)
|
the Corporate Guarantee;
|
(e)
|
the Agency and Trust Agreement; and
|
(f)
|
the Account Pledges.
|
2
|
Copies of the certificate of incorporation and constitutional documents of each Borrower, the Corporate Guarantor and any other Security Party.
|
3
|
Copies of resolutions of the shareholders (if applicable) and directors of each of the Borrowers and the Guarantor, authorising the execution of each of the Finance Documents to which it is a party and, in the case of each Borrower authorising named officers/signatories to give the Drawdown Notices and ratifying the execution of each Shipbuilding Contract to which it is a party.
|
4
|
The original of any power of attorney under which any Finance Document is executed on behalf of a Borrower, the Corporate Guarantor or any other Security Party.
|
5
|
Copies of all consents which any Borrower, the Corporate Guarantor or any Security Party requires to enter into, or make any payment under, any Finance Document to which it is a party and, in the case of a Borrower, the Shipbuilding Contract to which it is a party.
|
6
|
The originals of any mandates or other documents required in connection with the opening or operation of the Earnings Accounts, the Retention Account, the Swap Account and the Liquidity Account
|
7
|
Documentary evidence that the agent for service of process named in Clause 31 has accepted its appointment.
|
8
|
All documentation required by the Lenders in respect of each of the Borrowers and the Corporate Guarantor and any other Security Party, its directors and shareholders pursuant to each Lender's "Know Your Customer" requirements, together with such other documents or evidence as any Lender may reasonably require with respect to relevant money laundering requirements.
|
9
|
A copy of each Shipbuilding Contract and of all documents signed or issued by the Borrower which is a party thereto and the relevant Seller (or any of them) under or in connection with it.
|
10
|
Certified true copy of the powers of attorney in relation to the due authorisation and execution by the relevant Seller which is a party to each Shipbuilding Contract and of all documents to be executed in connection with it.
|
11
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the laws of the Marshall Islands and such other relevant jurisdictions as the Agent may require.
|
12
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
(a)
|
"Relevant Borrower" means the Borrower which is the owner of the Relevant Ship; and
|
(b)
|
"Relevant Ship" means each Ship which is relevant to the Tranche being advanced on the relevant Drawdown Date.
|
1
|
A duly executed original of the Mortgage, the Deed of Covenant, the General Assignment, the Initial Charter Assignment (and of each document to be delivered by each of them) in respect of the Relevant Ship.
|
2
|
Documentary evidence that:
|
(a)
|
|
|
(i)
|
in the case of the Relevant Ship being Ship A, has been unconditionally delivered by the relevant Seller and accepted by, the Relevant Borrower under the relevant Shipbuilding Contract and the full purchase price payable under that Shipbuilding Contract (in addition to the part to be financed by that Tranche) has been duly paid; and
|
|
(ii)
|
in the case of the Relevant Ship being Ship B or Ship C, to be unconditionally delivered by the relevant Seller and accepted by, the Relevant Borrower under the relevant Shipbuilding Contract and the full purchase price payable under that Shipbuilding Contract (in addition to the part to be financed by that Tranche) shall be duly paid; and
|
(b)
|
the Relevant Ship is definitively and permanently or, as the case may be, provisionally registered in the name of the Relevant Borrower under the Maltese flag;
|
(c)
|
the Relevant Ship is in the absolute and unencumbered ownership of the Relevant Borrower save as contemplated by the Finance Documents relative thereto;
|
(d)
|
the Relevant Ship maintains the highest class with a classification society which is a member of IACS acceptable to the Agent in its sole discretion, free of overdue recommendations and conditions of such classification society;
|
(e)
|
the Mortgage in respect of the Relevant Ship has been, in the case of the Relevant Ship being Ship A or, in the case of the Relevant Ship being Ship B or Ship C, will be duly registered (as the case may be) against the Relevant Ship as a valid first priority ship mortgage in accordance with the laws of Malta;
|
(f)
|
the Relevant Ship is insured in accordance with the provisions of this Agreement and all requirements therein in respect of insurances have been complied with; and
|
(g)
|
in the case of the Relevant Ship being Ship A, has been and in the case of the Relevant Ship being Ship B and Ship C, to be unconditionally delivered by the relevant Borrower to, and accepted by, the relevant charterer under the relevant Initial Charter.
|
3
|
Documents establishing that each Relevant Ship will, as from the relevant Drawdown Date, be managed by the Approved Manager on terms acceptable to the Lenders, together with:
|
(a)
|
the Approved Manager's Undertaking relative thereto; and
|
(b)
|
copies of the Approved Manager's Document of Compliance and of that Ship's Safety Management Certificate (together with any other details of the applicable safety management system which the Agent reasonably requires) and in the case of the Relevant Ship being Ship B or Ship C, evidence satisfactory to the Agent and its legal adviser that the Approved Manager has undertaken all required actions to ensure that the above certificates are issued as soon as possible after the Delivery Date of the relevant Ship).
|
4
|
Two valuations of each Relevant Ship (at the cost of the Borrower) prepared in accordance with Clause 15.3 and dated not earlier than 14 days prior to the relevant Drawdown Date for the purpose of calculating its Initial Market Value showing that the Tranche financing that Ship does not exceed 62 per cent. of the Initial Market Value.
|
5
|
Favourable legal opinions from lawyers appointed by the Agent on such matters concerning the law of Marshall Islands, Malta and such other relevant jurisdictions as the Agent may require.
|
6
|
A favourable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances for each Relevant Ship as the Agent may require.
|
7
|
Evidence satisfactory to the Agent that the Minimum Liquidity is standing to the credit of the Liquidity Account pursuant to Clause 11.18.
|
8
|
A copy of the Initial Charter in respect of the Relevant Ship (in a form and substance satisfactory to the Agent) and of all documents signed or issued by the Relevant Borrower or the charterer (or either of them) under or in connection with it, together with evidence of authorisation (if available to the Relevant Borrower) with respect to the execution thereof by the Relevant Borrower and the Charterer.
|
9
|
If the Agent so requires, in respect of any of the documents referred to above, a certified English translation prepared by a translator approved by the Agent.
|
1
|
The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a) the requirements of the Financial Services Authority (or any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
2
|
On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall calculate, as a percentage rate, a rate (the "Additional Cost Rate") for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the relevant Advance) and will be expressed as a percentage rate per annum.
|
3
|
The Additional Cost Rate for any Lender lending from a lending office in a Participating Member State will be the percentage notified by that Lender to the Agent. This percentage will be certified by that Lender in its notice to the Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in all Advances made from that lending office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that lending office.
|
4
|
The Additional Cost Rate for any Lender lending from a lending office in the United Kingdom will be calculated by the Agent as follows:
|
|
E
|
is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Agent as being the average of the most recent rates of charge supplied by the Reference Bank to the Agent pursuant to paragraph 6 below and expressed in pounds per £1,000,000.
|
5
|
For the purposes of this Schedule:
|
(a)
|
"Eligible Liabilities" and "Special Deposits" have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
|
(b)
|
"Fees Rules" means the rules on periodic fees contained in the FSA Supervision Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
|
(c)
|
"Fee Tariffs" means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate);
|
(d)
|
"Participating Member State" means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to European Monetary Union; and
|
(e)
|
"Tariff Base" has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.
|
6
|
If requested by the Agent, the Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Agent, the rate of charge payable by the Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by the Reference Bank as being the average of the Fee Tariffs applicable to the Reference Bank for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of the Reference Bank.
|
7
|
Each Lender shall supply any information required by the Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information in writing on or prior to the date on which it becomes a Lender:
|
(a)
|
the jurisdiction of its lending office; and
|
(b)
|
any other information that the Agent may reasonably require for such purpose.
|
8
|
The rates of charge of the Reference Bank for the purpose of E above shall be determined by the Agent based upon the information supplied to it pursuant to paragraph 6 above and on the assumption that, unless a Lender notifies the Agent to the contrary, each Lender's obligations in relation to cash ratio deposits and special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a lending office in the same jurisdiction as its lending office.
|
9
|
The Agent shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates any Lender and shall be entitled to assume that the information provided by any Lender or the Reference Bank pursuant to paragraphs 3, 6 and 7 above is true and correct in all respects.
|
10
|
The Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 6 and 7 above.
|
11
|
Any determination by the Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all parties.
|
12
|
The Agent may from time to time, after consultation with the Borrowers and the Lenders, determine and notify to all parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties.
|
|
Attn: [Ship Finance Portfolio Management]
|
|
[date]
|
|
Dear Sirs
|
|
We refer to:
|
1
|
the Loan Agreement;
|
2
|
the Master Agreement dated as of [l] made between ourselves and HSH Nordbank AG; and
|
3
|
a Confirmation delivered pursuant to the said Master Agreement dated [l] and addressed by HSH Nordbank AG to us.
|
To:
|
HSH Nordbank AG for itself and for and on behalf of each Borrower, each Security Party, the Security Trustee, each Lender and the Swap Bank, as defined in the Loan Agreement referred to below.
|
1
|
This Certificate relates to a Loan Agreement (the "Loan Agreement") dated [l] 2012 and made between (1) Amathus Owning Company Limited, Symi Owners Inc. and Kalymnos Owners Inc. (the "Borrowers") as joint and several Borrowers, (2) the banks and financial institutions named therein as Lenders, (3) HSH Nordbank AG as Swap Bank, (4) HSH Nordbank AG as Agent (5) HSH Nordbank AG as Mandated lead Arranger and (6) HSH Nordbank AG as Security Trustee for a loan facility of up to US$87,653,740.
|
2
|
In this Certificate, terms defined in the Loan Agreement shall, unless the contrary intention appears, have the same meanings and:
|
3
|
The effective date of this Certificate is [l] Provided that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4
|
The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Loan Agreement and every other Finance Document (other than the Master Agreement) in relation to [l] per cent. of its Contribution, which percentage represents $[l].
|
5
|
By virtue of this Certificate and Clause 26 of the Loan Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[l]] [from [l] per cent. of its Commitment, which percentage represents $[l]] and the Transferee acquires a Commitment of $[l].]
|
6
|
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
7
|
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Loan Agreement.
|
8
|
The Transferor:
|
(a)
|
warrants to the Transferee and each Relevant Party that:
|
|
(i)
|
the Transferor has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which are in connection with this transaction; and
|
|
(ii)
|
this Certificate is valid and binding as regards the Transferor;
|
(b)
|
warrants to the Transferee that the Transferor is absolutely entitled, free of encumbrances, to all the rights and interests covered by the assignment in paragraph 4 above; and
|
(c)
|
undertakes with the Transferee that the Transferor will, at its own expense, execute any documents which the Transferee reasonably requests for perfecting in any relevant jurisdiction the Transferee's title under this Certificate or for a similar purpose.
|
9
|
The Transferee:
|
(a)
|
confirms that it has received a copy of the Loan Agreement and each of the other Finance Documents;
|
(b)
|
agrees that it will have no rights of recourse on any ground against either the Transferor, the Agent, the Mandated Lead Arranger, the Security Trustee, any Lender or the Swap Bank in the event that:
|
|
(i)
|
any of the Finance Documents prove to be invalid or ineffective;
|
|
(ii)
|
any Borrower or any Security Party fails to observe or perform its obligations, or to discharge its liabilities, under any of the Finance Documents;
|
|
(iii)
|
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrowers or any Security Party under the Finance Documents;
|
(c)
|
agrees that it will have no rights of recourse on any ground against the Agent, the Mandated Lead Arranger, the Security Trustee, any Lender or the Swap Bank in the event that this Certificate proves to be invalid or ineffective;
|
(d)
|
warrants to the Transferor and each Relevant Party that:
|
|
(i)
|
it has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which it needs to take or obtain in connection with this transaction; and
|
|
(ii)
|
this Certificate is valid and binding as regards the Transferee; and
|
(e)
|
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10
|
The Transferor and the Transferee each undertake with the Agent, the Mandated Lead Arranger and the Security Trustee severally, on demand, fully to indemnify the Agent and/or the Security Trustee and/or the Mandated Lead Arranger in respect of any claim, proceeding, liability or expense (including all legal expenses) which they or either of them may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable
|
11
|
The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 10 as exceeds one-half of the amount demanded by the Agent, the Mandated Lead Arranger or the Security Trustee in respect of a claim, proceeding, liability or expense which was not reasonably foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of each of the Transferor and the Transferee to the Agent, the Mandated Lead Arranger or the Security Trustee for the full amount demanded by it.
|
SIGNED by Geoffroy Gunet
|
) /s/ Geoffroy Gunet
|
)
|
|
for and on behalf of
|
)
|
AMATHUS OWNING
|
)
|
COMPANY LIMITED
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
|
SIGNED by Geoffroy Gunet
|
) /s/ Geoffroy Gunet
|
)
|
|
for and on behalf of
|
)
|
SYMI OWNERS INC.
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
|
SIGNED by Geoffroy Gunet
|
) /s/ Geoffroy Gunet
|
)
|
|
for and on behalf of
|
)
|
KALYMNOS OWNERS INC.
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
|
LENDERS
|
|
SIGNED by Erica Lacombe
|
) /s/ Erica Lacombe
|
)
|
|
for and on behalf of
|
)
|
HSH NORDBANK AG
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
|
SWAP BANK
|
|
SIGNED by Erica Lacombe
|
) /s/ Erica Lacombe
|
)
|
|
for and on behalf of
|
)
|
HSH NORDBANK AG
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
|
AGENT
|
|
SIGNED by Erica Lacombe
|
) /s/ Erica Lacombe
|
)
|
|
for and on behalf of
|
)
|
HSH NORDBANK AG
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
|
MANDATED LEAD ARRANGER
|
|
SIGNED by Erica Lacombe
|
) /s/ Erica Lacombe
|
)
|
|
for and on behalf of
|
)
|
HSH NORDBANK AG
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
SECURITY TRUSTEE
|
|
SIGNED by Erica Lacombe
|
) /s/ Erica Lacombe
|
)
|
|
for and on behalf of
|
)
|
HSH NORDBANK AG
|
)
|
in the presence of:
|
)
|
/s/ Vassiliki Georgopoulos
|
|
Vassiliki Georgopoulos
|
|
Solicitor
|
|
Watson, Farley & Williams
|
|
89 Akti Miaouli
|
|
Piraeus 185 38 - Greece
|
Clause
|
Page
|
||
1
|
Definitions
|
2
|
|
2
|
Agreement of the Creditors
|
3
|
|
3
|
Amendments to Principal Agreement
|
4
|
|
4
|
Representations and warranties
|
5
|
|
5
|
Conditions
|
6
|
|
6
|
Security Parties' confirmations
|
6
|
|
7
|
Expenses
|
7
|
|
8
|
Miscellaneous and notices
|
7
|
|
9
|
Applicable law
|
8
|
|
Schedule 1 The Banks
|
9
|
||
Schedule 2 Documents and evidence required as conditions precedent (referred to in clause 5.1
|
10
|
(1)
|
OLYMPIAN HERA OWNERS INC., a corporation incorporated in the Republic of the Marshall Islands, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "Borrower");
|
(2)
|
DRYSHIPS INC., a corporation incorporated in the Republic of the Marshall Islands, whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "DryShips Guarantor");
|
(3)
|
OLYMPIAN ASCLEPIUS HOLDING INC., a corporation incorporated in the Republic of the Marshall Islands with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands (the "Asclepius Guarantor" and together with the DryShips Guarantor, the, "Guarantors" and each a "Guarantor");
|
(4)
|
TMS TANKERS LTD., a corporation incorporated in the Republic of the Marshall Islands, with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "Manager");
|
(5)
|
OLYMPIAN HERA SHAREHOLDERS INC., a corporation incorporated in the Republic of the Marshall Islands with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands (the "Shareholder");
|
(6)
|
THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out in schedule 1 (together the "Banks" and each a "Bank"); and
|
(7)
|
DVB BANK SE, a company established under the laws of the Federal Republic of Germany, acting for the purposes of this Agreement through its office at Platz der Republik 6, D-60325 Frankfurt am Main, Federal Republic of Germany as arranger (in such capacity the "Arranger"), agent (in such capacity the "Agent") and security agent (in such capacity the "Security Agent").
|
(A)
|
this Agreement is supplemental to a loan agreement dated 20 April 2011 as the same may be amended to date and from time to time (the "Principal Agreement") made between the Borrower as borrower, the Banks as lenders, the Agent, the Security Agent and the Arranger, pursuant to which the Banks agreed (inter alia) to advance (and have advanced) by way of a loan to the Borrower upon the terms and conditions therein contained the principal sum of Thirty two million three hundred twelve thousand five hundred Dollars ($32,312,500), of which the principal amount outstanding at the date hereof is Twenty nine million six hundred and twenty thousand Dollars ($29,620,000); and
|
(B)
|
the Borrower has requested that (inter alia) (a) all amounts standing to the credit of the Operating Account are transferred to the New Operating Account (as defined below) and (b) all amounts standing to the credit of the Retention Account are transferred to the New Retention Account (as defined below); and
|
(C)
|
this Agreement sets out the terms and conditions upon which the Creditors shall, at the request of the Borrower, provide their consent to the said transfer of (a) all amounts standing to the credit of the Operating Account to the New Operating Account (as defined below) and (b) all amounts standing to the credit of the Retention Account to the New Retention Account (as defined below).
|
2.1.1
|
the transfer of all amounts standing to the credit of the Operating Account to the New Operating Account;
|
2.1.2
|
the transfer of all amounts standing to the credit of the Retention Account to the New Retention Account; and
|
2.1.3
|
the amendment of the Principal Agreement on the terms set out in clause 3.
|
3.1.1
|
by inserting the following new definition of "Supplemental Agreement" in the correct alphabetical order in clause 1.2 of the Principal Agreement:
|
3.1.3
|
by inserting the words "the Supplemental Agreement," after the words "this Agreement," in the definition of "Security Documents" in clause 1.2 of the Principal Agreement;
|
3.1.4
|
by deleting the words "and the Account Pledge" and ", the choice of Greek law to govern the Account Pledges" in clause 7.1.7 of the Principal Agreement"; and
|
3.1.5
|
by inserting at the end of clause 14.1.2 of the Principal Agreement the words "and the Borrower further undertakes to maintain at all times throughout the Security Period with the Account Bank in respect of the Accounts, such instructions and arrangements in place in all respects satisfactory to the Agent, as shall ensure that the Agent shall at any time have electronic and/or other access to the information, balances and transactions relating to each Account.
|
5.2.1
|
the representations and warranties in clause 4 being true and correct on the Effective Date as if each were made with respect to the facts and circumstances existing at such time; and
|
6.1.1
|
the Guarantee to which it is a party, and the obligations of that Guarantor thereunder, shall remain and continue in full force and effect notwithstanding the said amendments made to the Principal Agreement and the other arrangements contained in this Agreement; and
|
6.1.2
|
with effect from the Effective Date references in the Guarantee to which it is a party to the "Loan Agreement" or the "Agreement" shall henceforth be references to the Principal Agreement as amended and supplemented by this Agreement and as from time to time hereafter amended and shall also be deemed to include this Agreement and the obligations of the Borrower hereunder.
|
6.2.1
|
each of the other Security Documents to which it is a party, and its obligations thereunder, shall remain in full force and effect notwithstanding the amendments made to the Principal Agreement and the other arrangements contained in this Agreement; and
|
6.2.2
|
with effect from the Effective Date, references to "the Agreement" or "the Loan Agreement" in any of the other Security Documents to which it is a party shall henceforth be references to the Principal Agreement as amended and supplemented by this Agreement and as from time to time hereafter amended and shall also be deemed to include this Agreement and the obligations of the Borrower hereunder.
|
7.1.1
|
in connection with the negotiation, preparation, execution and, where relevant, registration of this Agreement and the other Relevant Documents and of any amendment or extension of or the granting of any waiver or consent under this Agreement or the other Relevant Documents;
|
7.1.2
|
in contemplation of, or otherwise in connection with, the enforcement of, or preservation of any rights under this Agreement or the other Relevant Documents or otherwise in respect of the monies owing and obligations incurred under this Agreement and the other Relevant Documents,
|
|
together with interest at the rate referred to in clause 3.4 of the Principal Agreement from the date on which such expenses were incurred to the date of payment (as well after as before judgment).
|
|
(i)
|
being duly passed at meetings of the board of directors of such Relevant Party and, as the case may be, of the shareholders of such Relevant Party (other than the DryShips Guarantor) each duly convened and held;
|
|
(ii)
|
not having been amended, modified or revoked; and
|
|
(iii)
|
being in full force and effect,
|
(a)
|
each of the New Accounts has been opened together with duly executed mandates in respect thereof, and with such instructions and arrangements in place in all respects satisfactory to the Agent as shall ensure that the Agent shall at any time have electronic and/or other access to the information, balances and transactions relating to each New Account;
|
(b)
|
an amount of at least $10 is standing to the credit of each New Account; and
|
(c)
|
all moneys standing to the credit of (i) the Operating Account have been transferred to the New Operating Account and (ii) the Retention Account to the credit of the New Retention Account;
|
EXECUTED as a DEED
|
)
|
|||
by Dimitrios Glynos
|
)
|
|||
for and on behalf of
|
)
|
|||
OLYMPIAN HERA OWNERS INC.
|
)
|
/s/ Dimitrios Glynos
|
||
as Borrower
|
)
|
Attorney-in-fact
|
||
in the presence of
|
)
|
|||
/s/ Alice Southall
|
||||
Witness
|
||||
Name: Alice Southall
|
||||
Address: Norton Rose LLP
|
||||
Occupation: Trainee Solicitor
|
||||
EXECUTED as a DEED
|
)
|
|||
by Dimitrios Glynos
|
)
|
|||
for and on behalf of
|
)
|
|||
DRYSHIPS INC.
|
)
|
/s/ Dimitrios Glynos
|
||
as Guarantor
|
)
|
Attorney-in-fact
|
||
in the presence of
|
)
|
|||
/s/ Alice Southall
|
||||
Witness
|
||||
Name: Alice Southall
|
||||
Address: Norton Rose LLP
|
||||
Occupation: Trainee Solicitor
|
EXECUTED as a DEED
|
)
|
|||
by Dimitrios Glynos
|
)
|
|||
for and on behalf of
|
)
|
|||
OLYMPIAN ASCLEPIUS HOLDING INC.
|
)
|
/s/ Dimitrios Glynos
|
||
as Guarantor
|
)
|
Attorney-in-fact
|
||
in the presence of
|
)
|
|||
/s/ Alice Southall
|
||||
Witness
|
||||
Name: Alice Southall
|
||||
Address: Norton Rose LLP
|
||||
Occupation: Trainee Solicitor
|
EXECUTED as a DEED
|
)
|
|
by Dimitrios Glynos
|
)
|
|
for and on behalf of
|
)
|
|
TMS TANKERS LTD.
|
) |
/s/ Dimitrios Glynos
|
as Manager
|
)
|
Attorney-in-fact
|
in the presence of
|
)
|
|
/s/ Alice Southall
|
||
Witness
|
||
Name: Alice Southall
|
||
Address: Norton Rose LLP
|
||
Occupation: Trainee Solicitor
|
||
EXECUTED as a DEED
|
)
|
|
by Dimitrios Glynos
|
)
|
|
for and on behalf of
|
)
|
|
OLYMPIAN HERA SHAREHOLDERS INC.
|
) |
/s/ Dimitrios Glynos
|
as Manager
|
)
|
Attorney-in-fact
|
in the presence of
|
)
|
|
/s/ Alice Southall
|
||
Witness
|
||
Name: Alice Southall
|
||
Address: Norton Rose LLP
|
||
Occupation: Trainee Solicitor
|
||
EXECUTED as a DEED
|
)
|
|
by Maria [Illegible]
|
)
|
|
for and on behalf of
|
)
|
|
DVB BANK SE
|
) |
/s/ Maria [Illegible]
|
as Manager
|
)
|
Attorney-in-fact
|
in the presence of
|
)
|
|
/s/ Alice Southall
|
||
Witness
|
||
Name: Alice Southall
|
||
Address: Norton Rose LLP
|
||
Occupation: Trainee Solicitor
|
||
SIGNED by Maria [Illegible]
|
)
|
|
Name:
|
)
|
/s/ Maria [Illegible]
|
Address:
|
)
|
|
Occupation:
|
)
|
OLYMPIAN ATHENA OWNERS INC.
OLYMPIAN APHRODITE OWNERS INC.
OLYMPIAN DIONYSUS OWNERS INC.
as joint and several Borrowers
|
(1)
|
||
ABN AMRO BANK N.V.
and
THE KOREA DEVELOPMENT BANK
as joint mandated lead Arrangers
|
(2)
|
||
ABN AMRO BANK N.V.
as Facility Agent
|
(3)
|
||
ABN AMRO BANK N.V.
as Security Trustee
|
(4)
|
||
ABN AMRO BANK N.V.
as Account Bank
|
(5)
|
||
ABN AMRO BANK N.V.
as Swap Provider
|
(6)
|
||
ABN AMRO BANK N.V. (Singapore Branch)
as K-sure Agent
|
(7)
|
||
THE BANKS AND FINANCIAL INSTITUTIONS
whose names are set out in Schedule 1
as Lenders
|
(8)
|
||
K-SURE COVERED LOAN AGREEMENT
relating to a $107,668,750 loan to finance
m.t. Alicante, m.t. Bordeira and m.t. Mareta
|
1
|
Purpose and definitions
|
1
|
2
|
The Commitments and the Advances
|
20
|
3
|
Interest and interest periods
|
21
|
4
|
Repayment and prepayment
|
24
|
5
|
Commitment commission, fees, expenses and K-sure Premium
|
28
|
6
|
Payments and taxes; calculations
|
29
|
7
|
Representations and warranties
|
32
|
8
|
Undertakings
|
39
|
9
|
Conditions
|
57
|
10
|
Events of Default
|
58
|
11
|
Indemnities
|
62
|
12
|
Unlawfulness and increased costs
|
64
|
13
|
Security and set off
|
65
|
14
|
Accounts
|
68
|
15
|
Assignment, transfer and lending office
|
70
|
16
|
Arrangers, Facility Agent, Security Trustee, K-sure Agent and Account Bank
|
73
|
17
|
Notices and other matters
|
88
|
18
|
Governing law and jurisdiction
|
93
|
Schedule 1 The Lenders, their addresses and their Commitments
|
95
|
|
Schedule 2 The Ships
|
96
|
|
Schedule 3 Form of Drawdown Notice
|
97
|
|
Schedule 4 Documents and evidence required as conditions precedent
|
98
|
|
Schedule 5 Form of Substitution Certificate
|
105
|
Schedule 6 Form of Trust Deed
|
110
|
(1)
|
OLYMPIAN ATHENA OWNERS INC., OLYMPIAN APHRODITE OWNERS INC. and OLYMPIAN DIONYSUS OWNERS INC. as joint and several Borrowers;
|
(2)
|
ABN AMRO BANK N.V. and THE KOREA DEVELOPMENT BANK as joint mandated lead Arrangers;
|
(3)
|
ABN AMRO BANK N.V. as Facility Agent;
|
(4)
|
ABN AMRO BANK N.V. as Security Trustee;
|
(5)
|
ABN AMRO BANK N.V. as Account Bank;
|
(6)
|
ABN AMRO BANK N.V. as Swap Provider;
|
(7)
|
ABN AMRO BANK N.V. (Singapore Branch) as K-sure Agent ; and
|
(8)
|
THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set out in Part 1 of Schedule 1 as Lenders.
|
(a)
|
The Borrowers have agreed to purchase the Ships from the Builder on the terms of the Shipbuilding Contracts and intend to register the Ships on delivery under the laws of the relevant Flag State.
|
(b)
|
Each of the Lenders has agreed to advance to the Borrowers its Commitment (aggregating with the other Lenders' Commitments to an amount of up to One hundred and seven million six hundred and sixty eight thousand and seven hundred and fifty Dollars ($107,668,750)) to finance part of the acquisition cost of each Ship.
|
(c)
|
K-sure has agreed to insure the Lenders in respect of the payment obligations of the Borrowers in relation to each Advance and interest accrued thereon, subject to the terms and conditions of each K-sure Insurance Policy.
|
1.1
|
Purpose
|
1.2
|
Definitions
|
|
(a)
|
in relation to the Alicante Ship and/or the Shipbuilding Contract relating thereto, it means the Alicante Advance; or
|
|
(b)
|
in relation to the Mareta Ship and/or the Shipbuilding Contract relating thereto, it means the Mareta Advance; or
|
|
(c)
|
in relation to the Bordeira Ship and/or the Shipbuilding Contract relating thereto, it means the Bordeira Advance,
|
|
(a)
|
subject to paragraph (b), two point seven zero per cent (2.70%) per annum; or
|
|
(b)
|
the percentage rate agreed between the Borrowers, the Lenders and K-sure in accordance with clause 3.7 in relation to such Advance;
|
|
(a)
|
any law or regulation implementing the Basel II Accord; or
|
|
(b)
|
any Basel II Approach adopted by such Lender but excludes any law or regulation implementing the Basel III Accord save and to the extent that it is a re-enactment of any law or regulation referred to in paragraph (a) of this definition;
|
|
(a)
|
in respect of the Alicante Ship, the Alicante Deed of Covenant; or
|
|
(b)
|
in respect of the Bordeira Ship, the Bordeira Deed of Covenant; or
|
|
(c)
|
in respect of the Mareta Ship, the Mareta Deed of Covenant,
|
|
(a)
|
it is entered into by the Borrowers pursuant to the Master Swap Agreement with the Swap Provider as contemplated by clause 2.6; and
|
|
(b)
|
its purpose is the hedging of the Borrowers' exposure under this Agreement to fluctuations of LIBOR arising from the funding of the Loan (or any part thereof) for a period expiring no later than the final Repayment Date for the Loan or the relevant part thereof;
|
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations or other official guidance;
|
|
(b)
|
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States of America and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
|
(c)
|
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;
|
|
(a)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 January 2014;
|
|
(b)
|
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2015; or
|
|
(c)
|
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,
|
|
(a)
|
the rate, for such period, as displayed on Reuters screen page "LIBOR01" or such other page as may replace such page "LIBOR01" on such system or on any other system of the information vendor for the time being designated by the British Bankers' Association to calculate the BBA Interest Settlement Rate (as defined in the British Bankers' Association's Recommended Terms and Conditions ("BBAIRS" terms) applicable at the time)), at or about 11:00 a.m. (London time) on the Quotation Date for such period; or
|
|
(b)
|
if on such date the relevant page is not displayed on the Reuters screen or the Reuters screen or other designated system is not operating at the relevant time, the rate per annum determined by the Facility Agent to be the highest of the rates offered by the Lenders to prime banks in the London Interbank Market for deposits in Dollars in an amount approximately equal to such amount for a period equivalent to such period at or about 11:00 a.m. (London time) on the Quotation Date for such period,
|
|
(a)
|
in relation to the Alicante Ship, the Alicante Management Agreement; or
|
|
(b)
|
in relation to the Bordeira Ship, the Bordeira Management Agreement; or
|
|
(c)
|
in relation to the Mareta Ship, the Mareta Management Agreement,
|
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of any of the Borrowers or either of the Guarantors or the Group taken as a whole; or
|
|
(b)
|
the ability of a Security Party to perform its obligations under the Security Documents to which it is a party; or
|
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Encumbrance granted or purporting to be granted pursuant to any of, the Security Documents or the rights or remedies of any Finance Party under any of the Security Documents.
|
|
(a)
|
in relation to the Alicante Advance, Thirty three million seven hundred and eighty one thousand two hundred and fifty Dollars ($33,781,250); or
|
|
(b)
|
in relation to the Bordeira Advance, Forty million one hundred and six thousand two hundred and fifty Dollars ($40,106,250); or
|
|
(c)
|
in relation to the Mareta Advance, Thirty three million seven hundred and eighty one thousand two hundred and fifty Dollars ($33,781,250);
|
|
(a)
|
in relation to the Alicante Ship, the Alicante Mortgage; or
|
|
(b)
|
in relation to the Bordeira Ship, the Bordeira Mortgage; or
|
|
(c)
|
in relation to the Mareta Ship, the Mareta Mortgage,
|
|
(a)
|
in relation to the Alicante Ship, the Alicante Operating Account; or
|
|
(b)
|
in relation to the Bordeira Ship, the Bordeira Operating Account; or
|
|
(c)
|
in relation to the Mareta Ship, the Mareta Operating Account,
|
|
(a)
|
any lien on that Ship for master's, officer's or crew's wages outstanding in the ordinary course of trading for a period not exceeding thirty (30) days and the aggregate of any such liens are not to exceed at any time the Casualty Amount; or
|
|
(b)
|
any lien on that Ship for salvage and any ship repairer's or outfitter's possessory lien on that Ship for a sum not (except with the prior written consent of the Facility Agent, acting on the instructions of the Lenders) exceeding the Casualty Amount;
|
|
(a)
|
one-sixth (1/6th) of the repayment instalment in respect of such Advance falling due for payment pursuant to clause 4.1 (as the same may have been reduced by any prepayment) on the next Repayment Date for such Advance after the relevant Retention Date; and
|
|
(b)
|
the applicable fraction (as hereinafter defined) of the aggregate amount of interest falling due for payment in respect of each part of such Advance during and at the end of each Interest Period for such Advance current at the relevant Retention Date and, for this
|
|
(a)
|
in relation to the Alicante Borrower, the Alicante Share Pledge; or
|
|
(b)
|
in relation to the Bordeira Borrower, the Bordeira Share Pledge; or
|
|
(c)
|
in relation to the Mareta Borrower, the Mareta Share Pledge,
|
|
(a)
|
in relation to the Alicante Borrower, Olympian Athena Shareholders Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands MH 96960; or
|
|
(b)
|
in relation to the Bordeira Borrower, Olympian Aphrodite Shareholders Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands MH 96960; or
|
|
(c)
|
in relation to the Mareta Borrower, Olympian Dionysus Shareholders Inc. of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands MH 96960,
|
|
(a)
|
in relation to the Alicante Ship, the Alicante Shipbuilding Contract; or
|
|
(b)
|
in relation to the Bordeira Ship, the Bordeira Shipbuilding Contract; or
|
|
(c)
|
in relation to the Mareta Ship, the Mareta Shipbuilding Contract,
|
|
(a)
|
the actual, constructive, compromised or arranged total loss of such Ship; or
|
|
(b)
|
the Compulsory Acquisition of such Ship; or
|
|
(c)
|
the hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation of such Ship (other than where the same amounts to the Compulsory Acquisition of such Ship) by any Government Entity, or by persons acting or purporting to act on behalf of any Government Entity, unless such Ship be released and restored to the relevant Borrower (i) from such condemnation, capture, seizure, arrest, detention or confiscation within thirty (30) days after the occurrence thereof or (ii) from such hijacking or theft within sixty (60) days after the occurrence thereof;
|
|
(a)
|
a Borrower which is a "United States" person within the meaning of section 110(a)(30)of the Code; or
|
|
(b)
|
a Security Party some or all of whose payments under the Security Documents are from sources within the United States for US federal income tax purposes.
|
1.3
|
Headings
|
1.4
|
Construction of certain terms
|
1.4.1
|
references to any person includes such person's successors in title and permitted assignees and transferees;
|
1.4.2
|
references to clauses and schedules are to be construed as references to clauses of, and schedules to, this Agreement and references to this Agreement include its schedules;
|
1.4.3
|
references to (or to any specified provision of) this Agreement or any other document shall be construed as references to this Agreement, that provision or that document as in force for the time being and as amended in accordance with the terms thereof, or, as the case may be, with the agreement of the relevant parties;
|
1.4.4
|
references to a "regulation" include any present or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law) of any agency, authority, central bank or government department or any self-regulatory or other national or supra-national authority and for the avoidance of doubt should include any Basel II Regulation or any Basel III Regulation;
|
1.4.5
|
references to a "month" mean a period beginning in one calendar month and ending in the next calendar month on the day numerically corresponding to the day of the calendar month on which it started, provided that (a) if the period started on the last Banking Day in a calendar month or if there is no such numerically corresponding day, it shall end on the last Banking Day in such next calendar month, (b) if such numerically corresponding day is not a Banking Day, the period shall end on the next following Banking Day in the same calendar month but if there is no such Banking Day it shall end on the preceding Banking Day and "months" and "monthly" shall be construed accordingly and (c) references to a calendar shall be construed as references to the Gregorian calendar;
|
1.4.6
|
words importing the plural shall include the singular and vice versa;
|
1.4.7
|
references to a time of day are to London time unless otherwise specified;
|
1.4.8
|
references to a person shall be construed as references to an individual, firm, company, corporation, unincorporated body of persons or any Government Entity;
|
1.4.9
|
any reference to "control" of a person means:
|
|
(a)
|
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
(i)
|
cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of that person; or
|
|
(ii)
|
appoint or remove all, or the majority of the directors or other eqivalent officers of that person; or
|
|
(iii)
|
give directions with respect to the operating and financial policies of that person with which the directors or other equivalent officers of that person are obliged to comply; and/or
|
|
(b)
|
the holding beneficially of more than 50% of the issued share capital of that person (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) (and, for this purpose, any Encumbrance over share capital shall be disregarded in determining the beneficial ownership of such share capital),
|
1.4.10
|
references to a "guarantee" include references to an indemnity or other assurance against financial loss including, without limitation, an obligation to purchase assets or services as a consequence of a default by any other person to pay any Indebtedness and "guaranteed" shall be construed accordingly;
|
1.4.11
|
references to "assets" include all or part of any business, undertaking, real property, personal property, uncalled capital and any rights (whether actual or contingent, present or future) to receive, or require delivery of, any of the foregoing;
|
1.4.12
|
references to a document being "in agreed form" shall mean:
|
|
(a)
|
where a Security Document has already been executed by all of the relevant parties, such Security Document in its executed form;
|
|
(b)
|
prior to the execution of a Security Document, the form of such Security Document separately initialled by the Facility Agent (on instructions from the Lenders) or agreed in writing between the Facility Agent (on instructions from Lenders) and the Borrowers as the form in which that Security Document is to be executed or another form approved at the request of the Borrowers; and
|
1.4.13
|
references to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended.
|
1.5
|
Insurance terms
|
1.5.1
|
"excess risks" means the proportion (if any) of claims for general average, salvage and salvage charges not recoverable under the hull and machinery insurances of a vessel in consequence of the value at which the vessel is assessed for the purpose of such claims exceeding its insured value;
|
1.5.2
|
"excess war risk P&I cover" means cover for claims only in excess of amounts recoverable under the usual war risk cover including (but not limited to) hull and machinery, crew and protection and indemnity risks;
|
1.5.3
|
"protection and indemnity risks" means the usual risks (including liability for oil pollution, excess war risk P&I cover) covered by a protection and indemnity association which is a member of the International Group of Protection and Indemnity Associations (including, without limitation, the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation therein of Clause 8 of the Institute Time Clauses (Hulls) 1/11/95 or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision); and
|
1.5.4
|
"war risks" includes those risks covered by the standard form of English marine policy with Institute War and Strikes Clauses Hulls - Time (1/11/95) attached or similar cover.
|
1.6
|
Obligations several
|
1.7
|
Interests several
|
2
|
The Commitments and the Advances
|
2.1
|
Amount
|
2.2
|
Drawdown
|
2.3
|
Limitation on number, timing and amounts of Advances
|
2.3.1
|
The aggregate amount of all Advances shall not exceed the Total Commitments.
|
2.3.2
|
Each Advance may only be made on a Banking Day falling within the relevant Drawdown Period. There can be only one Drawdown Notice given in relation to an Advance.
|
2.3.3
|
There are up to three Advances, each relating to one Ship only. Each Advance is separate of the others.
|
2.3.4
|
Each Advance shall not exceed an amount in Dollars equal to the lesser of (i) fifty seven and one half of one per cent (57.5%) of the Contract Price for the relevant Ship, (ii) the relevant Maximum Amount and (iii) sixty seven and one half of one per cent (67.5%) of the market value of the relevant Ship as evidenced by the arithmetic mean of the valuations provided pursuant to paragraph 7 of Part 2 of Schedule 4 in respect of such Ship.
|
2.4
|
Availability
|
2.5
|
Application of proceeds
|
2.6
|
Derivative transactions
|
2.6.1
|
If, at any time during the Security Period, the Borrowers wish to enter into interest rate swap transactions or other derivative transactions so as to hedge (inter alia) all or any part of their exposure under this Agreement to interest rate fluctuations, they shall advise the Facility Agent and the Swap Provider in writing accordingly.
|
2.6.2
|
The Swap Provider shall, upon receipt of such notification from the Borrowers, inform the Lenders and shall, prior to execution of any documentation regarding any interest rate swap transactions or other derivative transactions, copy to the Lenders each Confirmation it proposes to enter into with the Borrowers.
|
2.6.3
|
Any such interest rate swap transaction or other derivative transaction shall be concluded with the Swap Provider under the Master Swap Agreement provided however that no such interest rate swap or other derivative transaction shall be concluded unless the Swap Provider and the Lenders first agrees to it in writing and, for the avoidance of any doubt, the Borrowers by execution of this Agreement acknowledge that the fact that the Swap Provider has entered into the Master Swap Agreement with the Borrowers does not obligate the Swap Provider to enter into any interest rate swap transaction or other derivative transaction which the Borrowers wish to enter into. For the avoidance of doubt, other than the Swap Provider's agreement in writing referred to in the preceding sentence and other than the prior notification and copy of the relevant documentation to all Lenders as set out in clause 2.6.2, no prior approval is required by the Borrowers or by the Swap Provider from any other Finance Party before concluding any such transaction. If and when any such interest rate swap transaction or other derivative transaction has been concluded, it shall constitute a Designated Transaction, and the Borrowers shall sign a Confirmation with the Swap Provider and advise the Lenders through the Facility Agent promptly after concluding any Designated Transaction.
|
3
|
Interest and interest periods
|
3.1
|
Normal interest rate
|
3.2
|
Selection of Interest Periods
|
3.3
|
Determination of Interest Periods
|
3.3.1
|
the first Interest Period in respect of each Advance shall commence on the date on which such Advance is drawn down and each subsequent Interest Period shall commence on the last day of the previous Interest Period for such Advance;
|
3.3.2
|
if any Interest Period in respect of an Advance would otherwise overrun a Repayment Date in respect of such Advance, then, in the case of the last Repayment Date for such Advance, such Interest Period shall end on such Repayment Date for such Advance, and in the case of any other Repayment Date or Repayment Dates for such Advance, such Advance shall be divided into parts so that there is one part in the amount of the repayment instalment due on each Repayment Date falling during that Interest Period and having an Interest Period ending on the relevant Repayment Date for such Advance and another part in the amount of the balance of such Advance having an Interest Period ascertained in accordance with clause 3.2 and the other provisions of this clause 3.3; and
|
3.3.3
|
if the Borrowers fail to specify the duration of an Interest Period in respect of an Advance in accordance with the provisions of clause 3.2 and this clause 3.3 such Interest Period, shall have a duration of three (3) months or such other period as shall comply with this clause.
|
3.4
|
Default interest
|
3.5
|
Notification of Interest Periods and interest rate
|
3.6
|
Market disruption; non-availability
|
3.6.1
|
If and whenever, at any time prior to the commencement of any Interest Period:
|
|
(a)
|
the Facility Agent shall have determined (which determination shall, in the absence of manifest error, be conclusive) that adequate and fair means do not exist for ascertaining LIBOR during such Interest Period; or
|
|
(b)
|
the Facility Agent shall have received notification from a Lender that deposits in Dollars are not available to such Lender in the London Interbank Market in the ordinary course of business in sufficient amounts to fund their Contributions for such Interest Period; or
|
|
(c)
|
the Facility Agent shall have received notification from a Lender that the cost to such Lender of obtaining deposits in Dollars in the London Interbank Market in the ordinary course of business exceeds LIBOR,
|
3.6.2
|
During the period of ten (10) days after any Determination Notice has been given by the Facility Agent under clause 3.6.1, each Lender shall certify to the Facility Agent an alternative basis (the "Alternative Basis") for making available or, as the case may be, maintaining its Contribution. The Alternative Basis may at the relevant Lender's sole and unfettered discretion include (without limitation) alternative interest periods, alternative currencies or alternative rates of interest but shall include a margin above the cost of funds to such Lender equivalent to the relevant Applicable Margin. The Facility Agent shall calculate the arithmetic mean of each Alternative Basis provided by the relevant Lenders (the "Substitute Basis") and certify the same to the Borrowers, the Lenders and the Swap Provider. The Substitute Basis so certified shall be binding upon the Borrowers and shall take effect in accordance with its terms from the date specified in the Determination Notice until such time as the Facility Agent notifies the Borrowers that none of the circumstances specified in clause 3.6.1 continues to exist whereupon the normal interest rate fixing provisions for this Agreement shall apply.
|
3.7
|
Margin increase
|
3.7.1
|
The Lenders shall have the right, in respect of each Advance, to request for an increase in the Applicable Margin of 2.70% per annum by any percentage rate per annum that the Lenders consider appropriate at the time, by serving notice in writing to this effect to the Borrowers and the K-sure Agent at any time after the date falling two (2) months prior to the Sixth Anniversary of such Advance (each such notice, an "Applicable Margin Notice"). The K-sure Agent shall promptly after receipt of the Applicable Margin Notice send a copy thereof to K-sure.
|
3.7.2
|
The Borrowers shall advise the Lenders and the K-sure Agent whether or not they agree to the margin increase request set out in the relevant Applicable Margin within fifteen (15) days of receipt of the Applicable Margin Notice.
|
3.7.3
|
In the event that the Borrowers agree to the Lenders request as set out in the relevant Applicable Margin Notice and provided always that K-sure has also agreed in writing to the proposed margin increase set out therein, then the relevant increased margin shall apply in relation to any Interest Period (or part thereof) of the relevant Advance commencing on or falling after the Sixth Anniversary of such Advance.
|
3.7.4
|
In the event that either the Borrowers or K-sure do not agree to the Lenders request as set out in the relevant Applicable Margin Notice, then the provisions of clause 4.4 may apply. For the avoidance of any doubt, it is understood by the parties hereto that as long as the Lenders do not exercise their rights to ask for the mandatory prepayment of the Advance in relation to which an Applicable Margin Notice has been given and has been rejected pursuant to this clause 3.7, the Applicable Margin for such Advance shall remain set at 2.70% per annum.
|
3.7.5
|
In the event that the Borrowers fail to respond to an Applicable Margin Notice by the date set out in clause 3.7.2, it shall be deemed that the Borrowers have accepted the Lenders request as set out in such Applicable Margin Notice. In the event that K-sure fails to advise the Lenders (through the K-sure Agent) of its decision in relation to the relevant Applicable Margin Notice by the date set out in clause 3.7.2, it shall be deemed that K-sure has rejected the Lenders request as set out in the relevant Applicable Margin Notice.
|
4
|
Repayment and prepayment
|
4.1
|
Repayment
|
4.1.1
|
The Borrowers shall repay the Advances as follows:
|
|
(a)
|
the Alicante Advance by twenty four (24) instalments, one such instalment to be repaid on each of the Repayment Dates relevant to such Advance. Subject to the provisions of this Agreement, the amount of each repayment instalment of the Alicante Advance shall be $1,407,552.08;
|
|
(b)
|
the Bordeira Advance by twenty four (24) instalments, one such instalment to be repaid on each of the Repayment Dates relevant to such Advance. Subject to the provisions of this Agreement, the amount of each such repayment instalment of the Bordeira Advance shall be $1,671,093.75; and
|
|
(c)
|
the Mareta Advance by twenty four (24) instalments, one such instalment to be repaid on each of the Repayment Dates relevant to such Advance. Subject to the provisions of this Agreement, the amount of each such repayment instalment of the Mareta Advance shall be $1,407,552.08.
|
4.1.2
|
If an Advance is not drawn down in full, the amount of each repayment instalment in respect of such Advance shall be reduced proportionately.
|
4.1.3
|
Notwithstanding the foregoing provisions of this clause, any part of the Loan remaining outstanding on the final Repayment Date of the last Advance shall be repaid in full on such Repayment Date together with any other amounts owing by the Borrowers to any Finance Party under any of the Security Documents or the K-sure Policies (as conclusively certified by the Facility Agent).
|
4.2
|
Voluntary prepayment
|
4.3
|
Mandatory Prepayment on Total Loss or sale
|
4.3.1
|
If a Mortgaged Ship is sold or becomes a Total Loss, then the Borrowers shall, on the Disposal Reduction Date for such Mortgaged Ship, prepay an amount equal to the higher of (i) the full amount of the Advance relevant to such Mortgaged Ship and (ii) an amount in Dollars equal to such amount as shall ensure that, immediately after the relevant prepayment, the Security Value shall not be less than the Security Requirement (subject to clause 4.3.2); and
|
4.3.2
|
notwithstanding clause 4.3.1, if a Mortgaged Ship is sold or becomes a Total Loss and an Event of Default shall have occurred and be continuing, then the Borrowers shall, on the Disposal Reduction Date for such Mortgaged Ship, prepay such proportion of the Loan as the Facility Agent may require in its absolute discretion.
|
4.3.3
|
Defined terms
|
|
(a)
|
"Disposal Reduction Date" means:
|
|
(i)
|
in relation to a Mortgaged Ship which has become a Total Loss, its Total Loss Reduction Date; and
|
|
(ii)
|
in relation to a Mortgaged Ship which is sold, the date of completion (and immediately prior to completion) of such sale by the transfer of title to such Mortgaged Ship to the purchaser in exchange for payment of the relevant purchase price; and
|
|
(b)
|
"Total Loss Reduction Date" means, in relation to a Mortgaged Ship which has become a Total Loss, the date which is the earlier of:
|
|
(i)
|
the date falling one hundred and twenty (120) days after that on which such Mortgaged Ship became a Total Loss; and
|
|
(ii)
|
the date upon which the relevant insurance proceeds are, or Requisition Compensation is, received by the relevant Borrower (or the Facility Agent pursuant to the relevant Ship Security Documents).
|
4.3.4
|
Interpretation
|
|
(a)
|
in the case of an actual total loss of a Ship, on the actual date and at the time such Ship was lost or, if such date is not known, on the date on which such Ship was last reported;
|
|
(b)
|
in the case of a constructive total loss of a Ship, upon the date and at the time notice of abandonment of such Ship is given to the insurers of such Ship for the time being;
|
|
(c)
|
in the case of a compromised or arranged total loss of a Ship, on the date upon which a binding agreement as to such compromised or arranged total loss has been entered into by the insurers of such Ship;
|
|
(d)
|
in the case of Compulsory Acquisition of a Ship, on the date upon which the relevant requisition of title or other compulsory acquisition of such Ship occurs; and
|
|
(e)
|
in the case of hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation of a Ship (other than where the same amounts to Compulsory Acquisition of such Ship) by any person, including by any Government Entity, or by persons purporting to act on behalf of any Government Entity, which deprives the relevant Borrower of the use of such Ship for more than (i) thirty (30) days, upon the expiry of the period of thirty (30) days after the date upon which the relevant condemnation, capture, seizure, arrest, detention or confiscation occurred or (ii) sixty (60) days upon expiry of the period of sixty (60) days after the date upon which the relevant hijacking or theft occurred.
|
4.4
|
Mandatory prepayment of Advances
|
4.5
|
Amounts payable on prepayment
|
4.5.1
|
accrued interest on the amount to be prepaid to the date of such prepayment;
|
4.5.2
|
any additional amount payable under clauses 6.7 or 12.2;
|
4.5.3
|
any prepayment premium payable under clause 4.7; and
|
4.5.4
|
all other sums payable by the Borrowers under this Agreement or any of the other Security Documents including, without limitation, any accrued commitment commission payable under clause 5.1.3 and any amounts payable under clause 11.
|
4.6
|
Notice of prepayment; reduction of repayment instalments
|
4.6.1
|
Every notice of prepayment shall be effective only on actual receipt by the Facility Agent, shall be irrevocable, shall specify the amount to be prepaid and shall oblige the Borrowers to make such prepayment on the date specified. No amount prepaid may be re-borrowed.
|
4.6.2
|
Any amount prepaid pursuant to clause 4.2 in respect of an Advance shall be applied in reduction of the repayment instalments of that Advance under clause 4.1 in inverse order of their date of maturity.
|
4.6.3
|
Any amount prepaid pursuant to clause 4.3 in respect of an Advance shall be applied in prepaying such Advance in full and the remainder (if any) of such amount shall be applied in reduction of all remaining Advances proportionately and, in relation to each remaining Advance, in reducing its repayment instalments under clause 4.1 proportionately.
|
4.6.4
|
Any amount prepaid pursuant to clause 8.2.1 shall be applied against all Advances proportionately and in reducing each Advance's repayment instalments under clause 4.1 proportionately.
|
4.6.5
|
The Borrowers may not prepay the Loan or any part thereof save as expressly provided in this Agreement.
|
4.7
|
Prepayment premium
|
4.8
|
Mandatory cancellation
|
4.8.1
|
If
|
|
(a)
|
prior to a Ship's Delivery (without prejudice to the terms of any Security Document to the contrary):
|
|
(i)
|
that Ship's Shipbuilding Contract is for any reason and by any method cancelled, terminated or rescinded; or
|
|
(ii)
|
a competent court or arbitration panel decides that that Ship's Shipbuilding Contract has been validly cancelled, terminated or rescinded; or
|
|
(iii)
|
that Ship's Shipbuilding Contract is varied in a way prohibited by any Security Document; or
|
|
(iv)
|
that Ship's Shipbuilding Contract is sold, assigned, novated or transferred; or
|
|
(v)
|
the relevant Borrower agrees to sell that Ship on its Delivery; or
|
|
(b)
|
Delivery of a Ship has not occurred by the End of Funding Date,
|
4.9
|
Automatic cancellation
|
4.10
|
Unwinding of Designated Transactions
|
4.11
|
Termination of a K-sure Policy: Mandatory prepayment
|
|
(a)
|
any of the obligations of K-sure under any K-sure Policy is terminated, cancelled, becomes invalid, unenforceable or otherwise ceases to be in full force and effect; or
|
|
(b)
|
it becomes unlawful or impossible for K-sure to fulfil any of the obligations expressed to be assumed by it in any K-sure Policy or for the K-sure Agent or a Lender to exercise the rights or any of them vested in it under any K-sure Policy; or
|
|
(c)
|
the K-sure Agent or the Lender is informed of K-sure's intention to, or K-sure has stated its intention to, repudiate, terminate, cancel or suspend the application of the K-sure Policy; or
|
|
(d)
|
any of the events or circumstances set out in clauses 10.1.8 to 10.1.14 (inclusive) occurs in relation to K-sure,
|
4.11.2
|
no Lender shall be obliged to fund an Advance unless the parties hereto agree otherwise in writing;
|
4.11.3
|
the Total Commitments shall be automatically cancelled unless the parties hereto agree otherwise in writing; and
|
4.11.4
|
the Loan together with accrued interest and all other sums payable under this Agreement an any other Security Document shall be deemed due and payable on the date falling forty five (45) Banking Days after such event occurs unless the parties hereto agree otherwise in writing before such due date.
|
5
|
Commitment commission, fees, expenses and K-sure Premium
|
5.1
|
Fees
|
5.1.1
|
on the date of this Agreement, for distribution to the Arrangers in equal shares, an arrangement fee of $1,076,687.50;
|
5.1.2
|
on the date of this Agreement and on each of the days falling at 12 monthly intervals thereafter, an agency fee of $30,000;
|
5.1.3
|
for the account of each Lender, on the date of this Agreement and on each of the dates falling at three (3) monthly interval thereafter up to and including the last day of the final Drawdown Period, commitment commission computed from the date of this Agreement (in the case of the first payment of commission) and from the due date of the preceding payment of commission (in the case of each subsequent payment) at the rate of one point zero eight per cent (1.08%) per annum on the daily undrawn and uncancelled amount of the Commitments of such Lender.
|
5.2
|
Expenses
|
5.2.1
|
in connection with the negotiation, preparation, execution and, where relevant, registration of the Security Documents or any of the K-sure Policies and of any amendment or extension of or the granting of any waiver or consent under, any of the Security Documents or any of the K-sure Policies and the syndication of the Loan; and
|
5.2.2
|
in contemplation of, or otherwise in connection with, the enforcement of, or preservation of any rights under, any of the Security Documents or any of the K-sure Policies, or otherwise in respect of the moneys owing under any of the Security Documents or any of the K-sure Policies,
|
5.3
|
Value added tax
|
|
5.4
|
Stamp and other duties
|
5.5
|
K-sure Premium
|
5.5.1
|
The Borrowers acknowledge that the Lenders shall procure the placement of the K-sure Policies through the K-sure Agent and shall benefit from them throughout the duration of the Security Period. The Borrowers agree to pay (through the Facility Agent or the K-sure Agent):
|
|
(a)
|
the K-sure Initial Premiums in relation each Advance to K-sure no later than the Drawdown Date of such Advance; and
|
|
(b)
|
any K-sure Additional Premium (if applicable) as reasonably determined by K-sure after the final Drawdown Date, within five (5) Banking Days of the K-sure Agent's or the Facility Agent's first demand.
|
5.5.2
|
The Borrowers agree that their obligation to make the payments set out in clause 5.5.1 to the K-sure Agent or, as the case may be, the Facility Agent in respect of the K-sure Premiums (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. Any refund of a K-sure Premium (or any part thereof) shall be made in accordance with the general terms of the relevant K-sure Policy.
|
5.5.3
|
The Borrowers acknowledge that the amounts of any K-sure Premiums will be solely determined by K-sure and no Finance Party is in any way involved in the determination of the amount of the K-sure Premiums and agree that the Borrowers shall have no claim or defence against any Finance Party in connection with the amount of the K-sure Premiums or any of them.
|
6
|
Payments and taxes; calculations
|
6.1
|
No set-off or counterclaim; distribution to the Lenders
|
6.2
|
Payment by the Lenders
|
6.3
|
Non-Banking Days
|
6.4
|
Facility Agent may assume receipt
|
6.5
|
Calculations
|
6.6
|
Certificates
|
6.7
|
Grossing-up for Taxes
|
6.7.1
|
If at any time the Borrowers or any of them are required to make any deduction or withholding in respect of Taxes from any payment due under any of the Security Documents for the account of any Finance Party (or if the Facility Agent, the K-sure Agent or the Security Trustee
|
6.7.2
|
For the avoidance of doubt, clause 6.7.1 does not apply in respect of sums due from the Borrowers to the Swap Provider under or in connection with the Master Swap Agreement as to which sums the provisions of Section 2(d) (Deduction or Withholding for Tax) of the Master Swap Agreement shall apply.
|
6.8
|
Bank account
|
6.9
|
Partial payments
|
6.9.1
|
first, in or towards payment, of any unpaid K-sure Premiums;
|
6.9.2
|
secondly, in or towards payment, on a pro-rata basis, of any unpaid costs and expenses of the Facility Agent and the Security Trustee under any of the Security Documents;
|
6.9.3
|
thirdly, in or towards payment, on a pro rata basis, of any fees and accrued commitment commission payable to the Arrangers, the Facility Agent or any of the other Finance Parties under, or in relation to, the Security Documents which remain unpaid;
|
6.9.4
|
fourthly, in or towards payment to the Lenders, on a prorata basis, of any accrued interest which shall have become due under any of the Security Documents;
|
6.9.5
|
fifthly, payment to the Lenders, on a prorata basis, of any amount of principal which shall have become due under any of the Security Documents but remains unpaid;
|
6.9.6
|
sixthly, in or towards payment to the Lenders, on a pro rata basis, for any loss suffered by reason of any such payment in respect of principal not being effected on an Interest Payment Date relating to the part of the Loan repaid;
|
6.9.7
|
seventhly, in or towards payment to the Swap Provider of any sums owing to it under the Master Swap Agreement; and
|
6.9.8
|
eighthly, in or towards payment to the relevant person of any other sum which shall have become due under any of the Security Documents but remains unpaid (and, if more than one such sum so remains unpaid, on a pro rata basis).
|
6.10
|
FATCA Deduction
|
6.10.1
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction.
|
6.10.2
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Borrowers, the Facility Agent and the other Finance Parties.
|
7
|
Representations and warranties
|
7.1
|
Continuing representations and warranties
|
7.1.1
|
Due incorporation
|
7.1.2
|
Corporate power
|
7.1.3
|
Binding obligations
|
|
(a)
|
the Transaction Documents and the Security Documents to which they are respectively a party constitute or will, when executed, constitute valid and legally binding obligations of the relevant Security Parties enforceable in accordance with their respective terms;
|
|
(b)
|
their obligations under this Agreement are independent from their obligations under the Shipbuilding Contracts and any Charter and the performance of their obligations under this Agreement shall in no event be affected by any dispute whatsoever that
|
7.1.4
|
No conflict with other obligations
|
7.1.5
|
No litigation
|
7.1.6
|
No filings required
|
7.1.7
|
Choice of law
|
7.1.8
|
No immunity
|
7.1.10
|
Consents obtained
|
7.1.11
|
Shareholdings
|
|
(a)
|
each Borrower is a wholly-owned direct Subsidiary of the relevant Shareholder;
|
|
(b)
|
each Shareholder is a wholly-owned indirect Subsidiary of the Olympian Asclepius Guarantor;
|
|
(c)
|
Olympian Asclepius Guarantor is a wholly-owned indirect Subsidiary of the Dryships Guarantor; and
|
|
(d)
|
the Manager is legally and/or beneficially owed by such persons as has been advised to the Facility Agent in the negotiations of this Agreement;
|
7.1.12
|
Compliance with laws and regulations
|
7.1.13
|
Borrowers' own account
|
7.1.14
|
Anti terrorism law and Foreign Corrupt Practices Act
|
|
(a)
|
neither the Borrowers nor any Guarantor nor any Shareholder or, to the knowledge of any Borrower, any director, officer, employee or affiliate acting on any Borrower's or any Guarantor's or any Shareholder's behalf is in violation of any Legal Requirements relating to terrorism ("Anti Terrorism Law"), including the United States of America Executive Order No. 13224 on Terrorist Financing, effective 24 September 2001 (the "Executive Order"), and the United States of America Uniting and Strengthening
|
|
(b)
|
neither the Borrowers nor any Guarantor nor any Shareholder or, to the knowledge of any Borrower, any director, officer, employee or affiliate acting on any Borrower's or any Guarantor's or any Shareholder's behalf acting or benefiting in any capacity in connection with this Agreement is any of the following:
|
|
(i)
|
a person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
|
|
(ii)
|
a person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
|
|
(iii)
|
a person with which any Lender or other Creditor is prohibited from dealing or otherwise engaging in any transaction by any Anti Terrorism Law;
|
|
(iv)
|
a person that commits, threatens or conspires to commit or supports "terrorism" as defined in the Executive Order; or
|
|
(v)
|
a person that is named as a "specially designated national and blocked person" on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or any replacement website or other replacement official publication of such list;
|
|
(c)
|
neither the Borrowers nor any Guarantor nor any Shareholder or, to the knowledge of any Borrower, any director, officer, employee or affiliate acting on any Borrower's or any Guarantor's or any Shareholder's behalf acting in any capacity in connection with this Agreement:
|
|
(i)
|
conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in paragraph (b) above;
|
|
(ii)
|
deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order; or
|
|
(iii)
|
engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti Terrorism Law;
|
|
(d)
|
neither the Borrowers nor any Guarantor nor any Shareholder or, to the knowledge of any Borrower, any director, officer, employee or affiliate acting on its behalf has:
|
|
(i)
|
used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity;
|
|
(ii)
|
made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
|
|
(iii)
|
violated or is in violation of any provision of the United States of America Foreign Corrupt Practices Act of 1977; or
|
|
(iv)
|
made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee;
|
7.1.15
|
Validity and admissibility in evidence
|
|
(a)
|
all authorisations required or desirable:
|
|
(i)
|
to enable each Security Party lawfully to enter into, exercise its rights and comply with its obligations under each Security Document and any Shipbuilding Contract to which it is a party;
|
|
(ii)
|
to make each Security Document and any Shipbuilding Contract to which it is a party admissible in evidence in its Relevant Jurisdiction; and
|
|
(iii)
|
to ensure that each of the Security Interests created under the Security Documents has the priority and ranking contemplated by them,
|
|
(b)
|
all authorisations necessary for the conduct of the business, trade and ordinary activities of each Security Party have been obtained or effected and are in full force and effect if failure to obtain or effect those authorisations might have a Material Adverse Effect; and
|
7.1.16
|
No Defence
|
7.2
|
Initial representations and warranties
|
7.2.1
|
Pari passu
|
7.2.2
|
No default under other Indebtedness / obligations
|
7.2.3
|
Information
|
7.2.4
|
No withholding Taxes
|
7.2.5
|
No Default
|
7.2.6
|
Copies true and complete
|
7.2.7
|
The Ships
|
|
(a)
|
in the absolute ownership of the relevant Borrower who will, on and after such Drawdown Date, be the sole, legal and beneficial owner of such Ship;
|
|
(b)
|
registered in the name of the relevant Borrower through the offices of the relevant Registry as a ship under the laws and flag of the relevant Flag State;
|
|
(c)
|
operationally seaworthy and in every way fit for service;
|
|
(d)
|
classed with the relevant Classification free of all requirements and recommendations of the relevant Classification Society; and
|
|
(e)
|
insured in the manner requested in clause 8.4 and/or the other relevant provisions of any of the Security Documents;
|
7.2.8
|
Ships' employment
|
7.2.9
|
Freedom from Encumbrances
|
|
(a)
|
no Ship, nor its Earnings, Insurances or Requisition Compensation nor any of the Accounts nor any other properties or rights which are, or are to be, the subject of any of the Security Documents nor any part thereof will be, on the Drawdown Date of an Advance relevant to such Ship, subject to any Encumbrance (other than any Permitted Encumbrances); and
|
|
(b)
|
no Borrower has any Indebtedness outstanding other than as permitted by this Agreement;
|
7.2.10
|
Compliance with Environmental Laws and Approvals
|
|
(a)
|
the Borrowers and the other Relevant Parties and their respective Environmental Affiliates have complied with the provisions of all Environmental Laws;
|
|
(b)
|
the Borrowers and the other Relevant Parties and their respective Environmental Affiliates have obtained all Environmental Approvals and are in compliance with all such Environmental Approvals; and
|
|
(c)
|
none of the Borrowers nor any other Relevant Party nor any of their respective Environmental Affiliates has received notice of any Environmental Claim that the Borrowers or any other Relevant Party or any such Environmental Affiliate is not in compliance with any Environmental Law or any Environmental Approval;
|
7.2.11
|
No Environmental Claims
|
7.2.12
|
No potential Environmental Claims
|
7.2.13
|
No material adverse change
|
7.2.14
|
DOC and SMC
|
7.2.15
|
ISPS Code
|
7.2.16
|
Assets
|
7.3
|
Repetition of representations and warranties
|
7.3.1
|
be deemed to repeat the representations and warranties in clauses 7.1 and 7.2 as if made with reference to the facts and circumstances existing on such day (and so that:
|
|
(a)
|
the representation and warranty in clause 7.1.9 shall for this purpose refer to the then latest audited financial statements delivered to the Facility Agent under clause 8.1.5; and
|
|
(b)
|
following the Listing Date, the representation and warranty in clause 7.1.11(c) shall for this purpose read as follows:
|
7.3.2
|
be deemed to further represent and warrant to each of the Finance Parties that the then latest audited financial statements delivered to the Facility Agent by the Borrowers (if any) have been prepared in accordance with generally accepted international accounting principles which have been consistently applied and present fairly and accurately the consolidated financial position of the Group and the financial position of the Borrowers, respectively, as at the end of the financial period to which the same relate and the consolidated results of the operations of the Group and the results of the operations of the Borrowers, respectively, for the financial period to which the same relate and, as at the end of such financial period, neither the Borrowers nor the Guarantors nor any other member of the Group had any significant liabilities (contingent or otherwise) or any unrealised or anticipated losses which are not disclosed by, or reserved against or provided for in, such financial statements.
|
8
|
Undertakings
|
8.1
|
General
|
8.1.1
|
Notice of Default
|
8.1.2
|
Consents and licences; compliance with laws and regulations
|
|
(a)
|
without prejudice to clauses 7.1 and 9, obtain or cause to be obtained, maintain in full force and effect and comply in all material respects with the conditions and restrictions (if any) imposed in, or in connection with, every consent, authorisation, licence or approval of governmental or public bodies or authorities or courts and do, or cause to be done, all other acts and things which may from time to time be necessary or desirable under applicable law for the continued due performance of all the obligations of the Security Parties under each of the Security Documents and the Transaction Documents; and
|
|
(b)
|
comply and will procure that each Guarantor will comply, with the terms and conditions of all laws, regulations, agreements, licences and concessions material to the carrying out of its business;
|
8.1.3
|
Use of proceeds
|
8.1.4
|
Pari passu
|
8.1.5
|
Financial statements and valuations
|
|
(a)
|
prepare or cause to be prepared consolidated financial statements of each Guarantor in accordance with generally accepted accounting principles in the United States of America consistently applied in respect of each financial year (namely, each 12-month period ending on 31 December of each calendar year) and cause the same to be reported on by the auditors and prepare unaudited consolidated financial statements of each Guarantor on the same basis as the annual statements in respect of the first half-year of each financial year (namely, each 6-month period ending on 30 June of each calendar year) and, in each case, deliver as many copies of the same as the Facility Agent and the Lenders may reasonably require as soon as practicable but not later than:
|
|
(i)
|
in the case of audited financial statements, one hundred and eighty (180) days after the end of the financial period to which they relate (namely, not later than 30 June of each calendar year); or
|
|
(ii)
|
in the case of unaudited financial statements, ninety (90) days after the end of the financial period to which they relate (namely, not later than 30 September of each calendar year); and
|
|
(b)
|
deliver or cause to be delivered to the Facility Agent and the Lenders a valuation of each Fleet Vessel (as defined in each Guarantee) prepared in accordance with, and in the manner specified in, clause 5.3.3 of each Guarantee, each time when any audited and/or unaudited consolidated financial statements of a Guarantor are delivered to the Facility Agent and the Lenders in accordance with clause 8.1.5(a) and clause 5.1 of each Guarantee;
|
8.1.6
|
Delivery of reports
|
8.1.7
|
Provision of further information
|
|
(a)
|
provide the Facility Agent and the K-sure Agent promptly with such financial or other information concerning any Borrower, the other Security Parties (except the Manager) and any other member of the Group and their respective affairs as the Facility Agent or the K-sure Agent or any Lender (acting through the Facility Agent) may from time to time reasonably require and keep the Facility Agent and the K-sure Agent advised regularly of all major financial developments in relation to the Borrowers, the other Security Parties (except the Manager) and the Group including, without prejudice to the generality of the foregoing, any vessel sales or purchases and any new borrowings; and
|
|
(b)
|
provide the Facility Agent and each Lender with all assistance, support, information and methods reasonably required by any of them at any time in order to:
|
|
(i)
|
achieve successful syndication of the facility made available under this Agreement and to prepare an information memorandum (the accuracy of which will be warranted by the Borrowers) for the purpose of achieving such syndication; and/or
|
|
(ii)
|
achieve a successful securitisation or any other similar transaction involving this Agreement and the other Security Documents,
|
|
(1)
|
senior management members and directors of each Guarantor and any other member of the Group participate in any relevant presentations made by the Facility Agent or a Lender to third parties;
|
|
(2)
|
any syndication or securitisation effort by the Facility Agent or the Lenders benefits from the existing banking relationships of the Group; and
|
|
(3)
|
any materials provided in accordance with this clause 8.1.7(b) include, without limitation, information relating to the business plans, asset valuations, disposals and other such information pertaining to each Guarantor or the Group, its business, affairs and its assets as may be reasonably requested by the Facility Agent and/or any Lender provided however that no such information shall be requested or disclosed (A) if such disclosure would constitute a breach of any applicable laws or regulations of any stock exchange, or (B) if such disclosure would be of a commercially sensitive nature the public disclosure of which would be prejudicial to the interests of the Borrowers of the Guarantors.
|
8.1.8
|
Know your customer information
|
8.1.9
|
Obligations under Security Documents
|
8.1.10
|
Compliance with ISM Code
|
8.1.11
|
Withdrawal of DOC and SMC
|
8.1.12
|
Issuance of DOC and SMC
|
8.1.13
|
ISPS Code compliance
|
|
(a)
|
from the Drawdown Date of an Advance relevant to a Ship and at all times thereafter, maintain a valid and current ISSC in respect of that Ship;
|
|
(b)
|
immediately notify the Facility Agent in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC in respect of a Ship; and
|
|
(c)
|
procure that from the Drawdown Date of an Advance relevant to a Ship and at all times thereafter, that Ship complies with the ISPS Code;
|
8.1.14
|
Charters
|
8.1.15
|
Securitisation
|
8.1.16
|
K-sure notification and information
|
|
(a)
|
notify the K-sure Agent forthwith by facsimile thereafter confirmed by letter of the occurrence of any political or commercial risk covered by any K-sure Policy; and
|
|
(b)
|
provide the K-sure Agent with copies of all financial or other information required by the K-sure Agent to satisfy any request for information by K-sure pursuant to any K-sure Policy;
|
8.1.17
|
K-sure Policies protection
|
|
(a)
|
if at any time in the opinion of the Facility Agent or the K-sure Agent, any provision of a Security Document contradicts or conflicts with any provision of any of the K-sure Policies, take all steps as the Facility Agent and/or the K-sure Agent and/or K-sure shall require to remove such contradiction or conflict;
|
|
(b)
|
take all steps as the Facility Agent and/or the K-sure Agent and/or K-sure shall require to ensure that each K-sure Policy remains in full force and effect;
|
|
(c)
|
assist the K-sure Agent or, as the case may be, each Lender in making a claim under any of the K-sure Policies; and
|
|
(d)
|
without prejudice to clauses 8.1.17(a) and (b), and will procure that the Guarantors will:
|
|
(i)
|
take such steps as the Facility Agent and/or the K-sure Agent and/or K-sure shall require in order to ensure that the beneficiaries under each K-sure Policy comply with and continue to benefit from the relevant K-sure Policy or to maintain the effectiveness of such K-sure Policy; and
|
|
(ii)
|
not do or omit to do or cause anything to be done or omitted which might be contrary to or incompatible with any of the obligations undertaken by the K-sure Agent under or in connection with any of the K-sure Policies; and
|
8.1.18
|
FATCA Information
|
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten (10) Banking Days of a reasonable request by another Party:
|
|
(i)
|
confirm to that other Party whether it is:
|
|
(A)
|
a FATCA Exempt Party; or
|
|
(B)
|
not a FATCA Exempt Party; and
|
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA (including, without limitation Internal Revenue Service Forms W-8 or W-9, its applicable passthru percentage or other information required under the Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA;
|
|
(b)
|
if a Party confirms to another Party pursuant to clause 8.1.18(a)(i) that it is a FATCA Exempt Party and its subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly;
|
|
(c)
|
clause 8.1.18(a) shall not oblige any Finance Party to:
|
|
(i)
|
disclose any tax returns or tax calculations; and
|
|
(ii)
|
do anything which would or might in its reasonable opinion constitute a breach of:
|
|
(A)
|
any law or regulation;
|
|
(B)
|
any policy of that Finance Party;
|
|
(C)
|
any fiduciary duty; or
|
|
(D)
|
any duty of confidentiality provided that, for the avoidance of doubt, the disclosure of information required by Internal Revenue Service Forms W-8 and W-9 (or any equivalent or successor forms) shall not constitute a breach of a duty of confidentiality; and
|
|
(d)
|
if a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with clause 8.1.18(a), then:
|
|
(i)
|
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
|
|
(ii)
|
if that Party failed to confirm its applicable passthru percentage then such Party shall be treated for the purposes of the arrangements relating to this Agreement (and payments made thereunder) as if its applicable passthru percentage is 100%,
|
8.2
|
Security value maintenance
|
8.2.1
|
Security shortfall
|
|
(a)
|
prepay such sum in Dollars as will result in the Security Requirement after such prepayment (taking into account any other repayment of the Loan made between the date of the notice and the date of such prepayment) being equal to the Security Value; or
|
|
(b)
|
constitute to the satisfaction of the Facility Agent such further security for the Loan and any moneys owing under the Master Swap Agreement as shall be acceptable to the Facility Agent having a value for security purposes (as determined by the Facility Agent in its absolute discretion) at the date upon which such further security shall be constituted which, when added to the Security Value, shall not be less than the Security Requirement as at such date.
|
8.2.2
|
Valuation of Mortgaged Ships
|
8.2.3
|
Information
|
8.2.4
|
Costs
|
8.2.5
|
Valuation of additional security
|
|
(a)
|
that additional security, its value and the method of its valuation have been approved by the Lenders;
|
|
(b)
|
an Encumbrance over that security has been constituted in favour of the Security Trustee or (if appropriate) the Finance Parties in an approved form and manner;
|
|
(c)
|
this Agreement has been unconditionally amended in such manner as the Facility Agent requires in consequence of that additional security being provided; and
|
|
(d)
|
the Facility Agent, or its duly authorised representative, has received such documents and evidence it may reasonably require in relation to that amendment and additional security including documents and evidence of the type referred to in Schedule 4 in relation to that amendment and additional security and its execution and (if applicable) registration
|
8.2.6
|
Documents and evidence
|
8.3
|
Negative undertakings
|
8.3.1
|
Negative pledge
|
8.3.2
|
No merger
|
8.3.3
|
Other business
|
8.3.4
|
Disposals
|
8.3.5
|
Acquisitions
|
8.3.6
|
Other obligations
|
8.3.7
|
No borrowing
|
8.3.8
|
Repayment of borrowings
|
8.3.9
|
Guarantees
|
8.3.10
|
Loans
|
8.3.11
|
Sureties
|
8.3.12
|
Share capital and distribution
|
8.3.13
|
Designated Transactions
|
8.3.14
|
Subsidiaries
|
8.3.15
|
Shareholdings:
|
|
(a)
|
change, cause or permit any change in, the legal ownership of any of the shares in any of the Borrowers or the Shareholders from that specified in clause 7.1.11;
|
|
(b)
|
change, or permit any change in the legal and/or ultimate beneficial ownership of the Manager from that specified in clause 7.1.11; or
|
|
(c)
|
change, cause or permit any change in, the legal and/or beneficial ownership of the shares in the Olympian Asclepius Guarantor from that specified in clause 7.1.11, provided that following the Listing Date, so long as the Dryships Guarantor remains the largest indirect beneficial owner of the Olympian Asclepius Guarantor and controls the Olympian Asclepius Guarantor, any other changes to the legal and/or beneficial ownership of the shares in the Olympian Asclepius Guarantor are hereby permitted; or
|
8.3.16
|
Constitutional documents
|
8.3.17
|
Auditors and financial year
|
8.3.18
|
FATCA
|
8.4
|
Insurance undertakings
|
8.4.1
|
Insured risks, amounts and terms
|
|
(a)
|
against fire and usual marine risks (including, without limitation, hull and machinery, interest and excess risks) and war risks, on an agreed value basis, in such amounts
|
|
(b)
|
against protection and indemnity risks (including pollution risks for the highest amount in respect of which cover is or may become available for ships of the same type, size, age and flag as such Ship and a freight, demurrage and defence cover) for the full value and tonnage of such Ship (as approved in writing by the Facility Agent) and upon such terms as shall from time to time be approved in writing by the Facility Agent;
|
|
(c)
|
against loss of earnings in such amounts and upon such terms as shall from time to time be approved in writing by the Facility Agent; and
|
|
(d)
|
in respect of such other matters of whatsoever nature and howsoever arising in respect of which insurance would be maintained by a prudent owner of such Ship,
|
8.4.2
|
Approved insurance brokers, insurers and associations
|
8.4.3
|
Fleet liens, set-off and cancellation
|
8.4.4
|
Payment of premiums and calls
|
8.4.5
|
Renewal
|
8.4.6
|
Guarantees
|
8.4.7
|
Hull policy documents, notices, loss payable clauses and brokers' undertakings
|
8.4.8
|
Associations' loss payable clauses, undertakings and certificates
|
8.4.9
|
Extent of cover and exclusions
|
8.4.10
|
Correspondence with brokers and associations
|
8.4.11
|
Independent report
|
8.4.12
|
Collection of claims
|
8.4.13
|
Employment of Ship
|
8.4.14
|
Application of recoveries
|
8.5
|
Ship undertakings - after Delivery
|
8.5.1
|
Ship's name and registration
|
|
(a)
|
not change the name of such Ship; and
|
|
(b)
|
keep such Ship registered as a Maltese ship at the Port of Valetta and not register such Ship or permit its registration under any other flag without the prior written consent of the Facility Agent (acting on the instructions of the Lenders) (such consent not to be unreasonably withheld); and
|
|
(c)
|
not do or suffer to be done anything, or omit to do anything the doing or omission of which could or might result in such registration being forfeited or imperilled or closed which could or might result in such Ship being required to be registered otherwise than as a Maltese ship at the Port of Valetta; and
|
|
(d)
|
if the said registration of such Ship is for a limited period, to renew the registration of such Ship at least forty-five (45) days prior to the expiry of such registration and to provide evidence of such renewal to the Facility Agent at least thirty (30) days prior to such expiry;
|
8.5.2
|
Repair
|
|
(a)
|
keep such Ship in a good and efficient state of repair; and
|
|
(b)
|
procure that all repairs to or replacement of any damaged, worn or lost parts or equipment of such Ship are effected in such manner (both as regards workmanship and quality of materials) as not to diminish the value of such Ship;
|
8.5.3
|
Modification; removal of parts; equipment owned by third parties
|
|
(a)
|
make any modification to such Ship in consequence of which her structure, type or performance characteristics could or might be materially altered or her value materially reduced; or
|
|
(b)
|
remove any material part of such Ship or any equipment the value of which is such that its removal from such Ship would materially reduce the value of such Ship without replacing the same with equivalent parts or equipment which are owned by the relevant Borrower free from Encumbrances; or
|
|
(c)
|
install on such Ship any equipment owned by a third party which cannot be removed without causing damage to the structure or fabric of such Ship;
|
8.5.4
|
Maintenance of class; compliance with regulations
|
|
(a)
|
maintain the relevant Classification as the class of such Ship; and
|
|
(b)
|
comply with and ensure that such Ship at all times complies with the provisions of the Maltese Merchant Shipping Act, Cap. 234 and all regulations and requirements (statutory or otherwise) from time to time applicable to vessels registered at the Port of Valetta or otherwise applicable to such Ship;
|
8.5.5
|
Surveys
|
|
(a)
|
submit such Ship:
|
|
(i)
|
to continuous surveys and such periodical or other surveys as may be required for classification purposes; and
|
|
(ii)
|
to one (1) survey per calendar year by surveyors appointed by the Facility Agent (on the instructions of the Lenders) at its discretion and at the cost of the Borrowers; and
|
|
(b)
|
supply to the Facility Agent copies of all survey reports issued in respect thereof;
|
8.5.6
|
Inspection
|
|
(a)
|
ensure that the Security Trustee or, as the case may be, the Facility Agent, by surveyors or other persons appointed by it for such purpose, at the cost of the Borrowers, may board the relevant Ship at all reasonable times for the purpose of inspecting her;
|
|
(b)
|
afford all proper facilities for such inspections; and
|
|
(c)
|
for this purpose, give the Facility Agent reasonable advance notice of any intended drydocking of such Ship (whether for the purpose of classification, survey or otherwise);
|
8.5.7
|
Prevention of and release from arrest
|
|
(a)
|
promptly pay and discharge all debts, damages, liabilities and outgoings whatsoever which have given or may give rise to maritime, statutory or possessory liens on, or claims enforceable against, such Ship, her Earnings or Insurances or any part thereof; and
|
|
(b)
|
in the event of a writ or libel being filed against such Ship, her Earnings or Insurances or any part thereof, or of any of the same being arrested, attached or levied upon pursuant to legal process or purported legal process or in the event of detention of such Ship in exercise or purported exercise of any such lien or claim as aforesaid, procure the release of such Ship, her Earnings and Insurances from such arrest, detention, attachment or levy or, as the case may be, the discharge of the writ or libel forthwith upon receiving notice thereof by providing bail or procuring the provision of security or otherwise as the circumstances may require;
|
8.5.8
|
Employment
|
|
(a)
|
not employ such Ship or permit her employment in any manner, trade or business which is forbidden by international law, or which is otherwise unlawful or illicit under the law of any relevant jurisdiction, or in carrying illicit or prohibited goods, or in any manner whatsoever which may render her liable to condemnation in a prize court, or to destruction, seizure, confiscation, penalty or sanctions; and
|
|
(b)
|
in the event of hostilities in any part of the world (whether war be declared or not):
|
|
(i)
|
not employ such Ship or permit her employment in carrying any contraband goods; or
|
|
(ii)
|
not enter or trade to or continue to trade her in any zone which is a trading area prohibited by the Flag State of such Ship or by such Ship's war risks insurers unless the prior written consent of the Facility Agent is obtained and such special insurance cover as the Facility Agent may require shall have been effected by the relevant Borrower and at its expense;
|
8.5.9
|
Information
|
8.5.10
|
Notification of certain events
|
|
(a)
|
any damage to such Ship requiring repairs the cost of which will or might exceed the relevant Casualty Amount;
|
|
(b)
|
any occurrence in consequence of which such Ship has or may become a Total Loss;
|
|
(c)
|
any requisition of such Ship for hire;
|
|
(d)
|
any requirement or recommendation made by any insurer or the relevant Classification Society or by any competent authority which is not, or cannot be, complied with in accordance with its terms;
|
|
(e)
|
any arrest or detention of such Ship or any exercise or purported exercise of a lien or other claim on such Ship or her Earnings or Insurances or any part thereof;
|
|
(f)
|
any petition or notice of meeting to consider any resolution to wind-up the relevant Borrower (or any event analogous thereto under the laws of the place of its incorporation);
|
|
(g)
|
the occurrence of any Default;
|
|
(h)
|
the occurrence of any Environmental Claim against the relevant Borrower, such Ship, any other Relevant Party or any other Relevant Ship or any incident, event or circumstances which may give rise to any such Environmental Claim;
|
|
(i)
|
any collision or salvage involving any Ship; or
|
|
(j)
|
any industrial injury on board any Ship (where the claim is for an amount which is reasonably expected to exceed the Casualty Amount);
|
8.5.11
|
Payment of outgoings and evidence of payments
|
|
(a)
|
promptly pay all tolls, dues and other outgoings whatsoever in respect of such Ship and her Earnings and Insurances; and
|
|
(b)
|
keep proper books of account in respect of such Ship and her Earnings; and
|
|
(c)
|
as and when the Facility Agent may so require, make such books available for inspection on behalf of the Facility Agent; and
|
|
(d)
|
furnish satisfactory evidence that the wages and allotments and the insurance and pension contributions of the Master and crew of such Ship are being promptly and regularly paid and that all deductions from crew's wages in respect of any applicable tax liability are being properly accounted for and that the Master has no claim for disbursements other than those incurred by him in the ordinary course of trading on the voyage then in progress;
|
8.5.12
|
Encumbrances
|
8.5.13
|
Sale or other disposal
|
8.5.14
|
Chartering
|
|
(a)
|
on demise charter for any period;
|
|
(b)
|
by any time or consecutive voyage charter for a term which exceeds or which by virtue of any optional extensions therein contained may exceed twelve (12) months' duration;
|
|
(c)
|
on terms whereby more than two (2) months' hire (or the equivalent) is payable in advance; or
|
|
(d)
|
below the market rate prevailing at the time when such Ship is fixed or other than on arms' length terms;
|
8.5.15
|
Sharing of Earnings
|
8.5.16
|
Payment of Earnings
|
|
(a)
|
procure that the Earnings of such Ship are paid to the relevant Operating Account pursuant to the provisions of clause 14; and
|
|
(b)
|
procure that the Earnings of such Ship are paid to the Facility Agent at all times if and when the same shall be or shall have become so payable after the Facility Agent shall have directed pursuant to clause 2.2.1 of the relevant Deed of Covenant that the same are no longer receivable by the relevant Borrower and that any such Earnings which are so payable and which are in the hands of such Borrowers' brokers or agents are duly accounted for and paid over to the Facility Agent forthwith on demand;
|
8.5.17
|
Repairers' liens
|
8.5.18
|
Notice of Mortgage
|
|
(a)
|
place and at all times and places retain a properly certified copy of the relevant Mortgage and the relevant Deed of Covenant (which shall form part of the relevant Ship's documents) on board such Ship with her papers and cause such certified copy of such Mortgage and Deed of Covenant to be exhibited to any and all persons having business with such Ship which might create or imply any commitment or encumbrance whatsoever on or in respect of such Ship (other than a lien for crew's wages and salvage) and to any representative of the Security Trustee or, as the case may be, of the Facility Agent; and
|
|
(b)
|
place and keep prominently displayed in the navigation room and in the Master's cabin of the relevant Ship a framed printed notice in plain type reading as follows:
|
8.5.19
|
Conveyance on default
|
8.5.20
|
Anti-drug abuse
|
|
(a)
|
take all necessary and proper precautions to prevent any infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar legislation applicable to such Ship in any jurisdiction in or to which such Ship shall be employed or located or trade or which may otherwise be applicable to such Ship and/or the relevant Borrower; and
|
|
(b)
|
if the Facility Agent shall so require, to enter into a "Carrier Initiative Agreement" with the United States Customs and Border Protection and to procure that such agreement (or any similar agreement hereafter introduced by any Government Entity of the United States of America) is maintained in full force and effect and performed by the relevant Borrower;
|
8.5.21
|
Compliance with Environmental Laws
|
|
(a)
|
comply with, and procure that all their Environmental Affiliates comply with, all Environmental Laws including, without limitation, requirements relating to manning submission of oil response plans, designations of qualified individuals and establishment of financial responsibility; and
|
|
(b)
|
obtain and comply with, and procure that all their Environmental Affiliates obtain and comply with, all Environmental Approvals;
|
8.5.22
|
Manager
|
8.5.23
|
Injunction order
|
8.5.24
|
Section 45A of the Maltese Merchant Shipping Act, Cap. 234
|
8.5.25
|
Resident agent
|
8.5.26
|
Compliance
|
8.5.27
|
Status
|
|
(a)
|
maintain such Ship's qualification as a 'tonnage tax ship' in terms of the Merchant Shipping Act, Cap. 234; and
|
|
(b)
|
(inter alia) file all necessary returns and/or accounts with the competent Maltese Authorities so as not to render the income of such Ship subject to any such tax or duty; and
|
|
(c)
|
when so qualified as a "tonnage tax ship", not imperil or lose such status for any reason whatsoever.
|
8.6
|
Ship undertakings - Construction period
|
8.6.1
|
Performance of Shipbuilding Contracts
|
8.6.2
|
Performance by Builder
|
8.6.3
|
Progress and information
|
8.6.4
|
Arbitration under Shipbuilding Contracts
|
|
(a)
|
if any party begins an arbitration under the Shipbuilding Contracts;
|
|
(b)
|
of the identity of the arbitrators; and
|
|
(c)
|
of the conclusion of the arbitration and the terms of any arbitration award;
|
8.6.5
|
Notification of certain events
|
8.6.6
|
Ship's registration and mortgage
|
8.6.7
|
Sale or other disposal
|
8.6.8
|
Variations
|
|
(a)
|
a Shipbuilding Contract shall not be varied; and
|
|
(b)
|
the specification of the Ship will not be changed in a substantial way.
|
8.6.9
|
Releases and waivers
|
9
|
Conditions
|
9.1
|
Documents and evidence
|
9.1.1
|
the Facility Agent and the Lenders, or their duly authorised representative, shall have received, not later than two (2) Banking Days before the day on which the Drawdown Notice is given in respect of the first Advance under this Agreement, the documents and evidence specified in Part 1 of Schedule 4 in form and substance satisfactory to the Facility Agent and the Lenders; and
|
9.1.2
|
the Facility Agent and the Lenders, or their duly authorised representative, shall have received, on or prior to the Drawdown Date of each Advance relating to such Ship, the documents and evidence specified in Part 2 of Schedule 4 in form and substance satisfactory to the Facility Agent and the Lenders.
|
9.2
|
General conditions precedent
|
9.2.1
|
the representations and warranties contained in clauses 7.1 (and so that the representation and warranty in clause 7.1.9 shall for this purpose refer to the then latest audited financial statements delivered to the Security Trustee under clause 8.1) and 7.2 and clauses 4.1 of each of the Guarantees (and so that the representation and warranty in clause 4.1.6 of the Dryships Guarantee shall for this purpose refer to the then latest audited financial statements
|
9.2.2
|
no Default shall have occurred and be continuing or would result from the making of such Advance; and
|
9.2.3
|
none of the events or circumstances set out in clause 4.11 apply.
|
9.3
|
Waiver of conditions precedent
|
9.4
|
Further conditions precedent
|
9.5
|
Notification
|
10
|
Events of Default
|
10.1
|
Events
|
|
There shall be an Event of Default if:
|
10.1.1
|
Non-payment: any Security Party fails to pay any sum payable by it under any of the Security Documents at the time, in the currency and in the manner stipulated in the Security Documents (and so that, for this purpose, sums payable on demand shall be treated as having been paid at the stipulated time if paid within three (3) Banking Days of demand); or
|
10.1.2
|
Master Swap Agreement: (a) an Event of Default or Potential Event of Default (in each case as each such term is defined in the Master Swap Agreement) has occurred and is continuing with the Borrowers or any of them as the Defaulting Party (as such term is defined in the Master Swap Agreement) under the Master Swap Agreement or (b) an Early Termination Date has occurred or been or become capable of being effectively designated under the Master Swap Agreement by the Swap Provider or (c) the Master Swap Agreement is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason; or
|
10.1.3
|
Breach of Insurance and certain other obligations: (a) any of the Borrowers or, as the case may be, the Manager or any other person fails to obtain and/or maintain the Insurances for any Mortgaged Ship (in accordance with the requirements of clause 8.4) or (b) if any insurer in respect of such Insurances cancels such Insurances or disclaims liability by reason, in either case, of mis-statement in any proposal for the Insurances or for any other failure or default on the part of any of the Borrowers or any other person or (c) any of the Borrowers commits any breach of, or omits to observe any of, the obligations or undertakings expressed to be assumed by them under clauses 8.2, 8.3, 8.4, 8.5 or 8.6 or (d) either Guarantor commits any breach of clause 5.3 of its Guarantee;
|
10.1.4
|
Breach of other obligations: any Security Party commits any breach of or omits to observe any of its obligations or undertakings expressed to be assumed by it under any of the Security Documents (other than those referred to in clauses 10.1.1 to 10.1.3 above) and, in respect of any such breach or omission which in the opinion of the Facility Agent (acting on the instructions of the Lenders) is capable of remedy, such action as the Facility Agent (acting on the instructions of the Lenders) may require shall not have been taken within fourteen (14) days of the Facility Agent notifying the relevant Security Party of such default and of such required action; or
|
10.1.5
|
Misrepresentation: any representation or warranty made or deemed to be made or repeated by or in respect of any Security Party in or pursuant to any of the Security Documents or in any notice, certificate or statement referred to in or delivered under any of the Security Documents is or proves to have been incorrect or misleading in any material respect; or
|
10.1.6
|
Cross-default: any Indebtedness of any Security Party (except the Manager) or any Subsidiary of the Olympian Asclepius Guarantor is not paid when due or any Indebtedness of any Security Party (except the Manager) or any Subsidiary of the Olympian Asclepius Guarantor becomes (whether by declaration or automatically in accordance with the relevant agreement or instrument constituting the same) due and payable prior to the date when it would otherwise have become due (unless as a result of the exercise by the relevant Security Party (except the Manager) of a voluntary right of prepayment), or any creditor of any Security Party (except the Manager) or any Subsidiary of the Olympian Asclepius Guarantor declares or (except in the case of the DryShips Guarantor) becomes entitled to declare any such Indebtedness due and payable or any facility or commitment available to any Security Party (except the Manager) or any Subsidiary of the Olympian Asclepius Guarantor relating to Indebtedness is withdrawn, suspended or cancelled by reason of any default (however described) of the person concerned unless the relevant Security Party (except the Manager) or relevant Subsidiary shall have satisfied the Facility Agent that such withdrawal, suspension or cancellation will not affect or prejudice in any way the ability of the relevant Security Party's (except the Manager) or the relevant Subsidiary's ability to pay its debts as they fall due and fund its commitments, or any guarantee given by any Security Party (except the Manager) or any Subsidiary of the Olympian Asclepius Guarantor in respect of Indebtedness is not honoured when due and called upon Provided that the following circumstances shall not constitute an Event of Default under this clause 10.1.6:
|
|
(a)
|
the aggregate amount at any time of all Indebtedness of the Dryships Guarantor in relation to which any of the foregoing events shall have occurred, is lower than One million Dollars ($1,000,000) or its equivalent in the currency in which the same is denominated or payable; or
|
|
(b)
|
in the case of a guarantee given by the Dryships Guarantor the demand made thereunder by the relevant beneficiary is, in the opinion of the Facility Agent (acting on the instructions of the Lenders) being contested in good faith by the Dryships Guarantor; or
|
10.1.7
|
Legal process: any judgement or order made against any Security Party (except the Manager) or any other Relevant Party (except the Manager) is not stayed or complied with within fifteen (15) days or a creditor attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced upon or sued out against, any of the undertakings, assets, rights or revenues of any Security Party (except the Manager) or any other Relevant Party (except the Manager) and is not discharged within fifteen (15) days; or
|
10.1.8
|
Insolvency: any Security Party (except the Manager) or any other Relevant Party (except the Manager) is unable or admits inability to pay its debts as they fall due; suspends making payments on any of its debts or announces an intention to do so; becomes insolvent; has assets the value of which is less than the value of its liabilities (taking into account contingent and prospective liabilities); or suffers the declaration of a moratorium in respect of any of its Indebtedness; or
|
10.1.9
|
Reduction or loss of capital: a meeting is convened by any Security Party (except the Manager) or any other Relevant Party (except the Manager) for the purpose of passing any resolution to purchase, reduce or redeem any of its share capital;
|
10.1.10
|
Winding up: any corporate action, legal proceedings or other procedure or step is taken for the purpose of winding up any Security Party or any other Relevant Party or an order is made or resolution passed for the winding up of any Security Party or any other Relevant Party or a notice is issued convening a meeting for the purpose of passing any such resolution; or
|
10.1.11
|
Administration: any petition is presented, notice given or other step is taken for the purpose of the appointment of an administrator of any Security Party or any other Relevant Party or the Facility Agent believes that any such petition or other step is imminent or an administration order is made in relation to any Security Party or any other Relevant Party; or
|
10.1.12
|
Appointment of receivers and managers: any administrative or other receiver is appointed of any Security Party (except the Manager) or any other Relevant Party (except the Manager) or any part of its assets and/or undertaking or any other steps are taken to enforce any Encumbrance over all or any part of the assets of any Security Party (except the Manager) or any other Relevant Party (except the Manager); or
|
10.1.13
|
Compositions: any corporate action, legal proceedings or other procedures or steps are taken, or negotiations commenced, by any Security Party (except the Manager) or any other Relevant Party (except the Manager) or by any of its creditors with a view to the general readjustment or rescheduling of all or part of its indebtedness or to proposing any kind of composition, compromise or arrangement involving such company and any of its creditors; or
|
10.1.14
|
Analogous proceedings: (i) there occurs in relation to any Security Party (except the Manager) or any other Relevant Party (except the Manager) in any country or territory in which any of them carries on business or to the jurisdiction of whose courts any part of their assets is subject, any event which, in the reasonable opinion of the Facility Agent, appears in that country or territory to correspond with, or have an effect equivalent or similar to, any of those mentioned in clauses 10.1.7 or 10.1.13 or any Security Party (except the Manager) or any other Relevant Party (except the Manager) otherwise becomes subject, in any such country or territory, to the operation of any law relating to insolvency, bankruptcy or liquidation and/or (ii) there occurs in relation to the Manager, in any country or territory in which it carries on business, any event which, in the reasonable opinion of the Facility Agent, appears in that country or territory to correspond with, or have an effect equivalent or similar to, any of those mentioned in clauses 10.1.10 and 10.1.11 or the Manager otherwise becomes subject in any country or territory to the operation of any law relating to liquidation; or
|
10.1.15
|
Cessation of business: any Security Party or any other Relevant Party suspends or ceases or threatens to suspend or cease to carry on its business; or
|
10.1.16
|
Seizure: all or a material part of the undertaking, assets, rights or revenues of, or shares or other ownership interests in, any Security Party or any other Relevant Party are seized, nationalised, expropriated or compulsorily acquired by or under the authority of any government; or
|
10.1.17
|
Invalidity: any of the Security Documents or any of the Transaction Documents shall at any time and for any reason, whether in whole or part, become invalid or unenforceable or otherwise cease to remain in full force and effect, or if the validity or enforceability of any of the Security Documents or any of the Transaction Documents shall at any time and for any reason be contested by any Security Party or other party thereto, or if any such Security Party or other party thereto shall deny that it has any, or any further, liability thereunder; or
|
10.1.18
|
Unlawfulness: it becomes impossible or unlawful at any time for any Security Party to fulfil any of the covenants and obligations expressed to be assumed by it in any of the Security Documents or for any of the Finance Parties to exercise the rights or any of them vested in it under any of the Security Documents or otherwise; or
|
10.1.19
|
Repudiation: any Security Party repudiates any of the Security Documents or any of the Transaction Documents or does or causes or permits to be done any act or thing evidencing an intention to repudiate any of the Security Documents or any of the Transaction Documents; or
|
10.1.20
|
Encumbrances enforceable: any Encumbrance (other than Permitted Liens) in respect of any of the property (or part thereof) which is the subject of any of the Security Documents becomes enforceable; or
|
10.1.21
|
Material adverse change: there occurs, in the opinion of the Facility Agent acting on the instructions of the Lenders, a Material Adverse Effect; or
|
10.1.22
|
Arrest: any Ship is arrested, confiscated, seized, taken in execution, impounded, forfeited, detained in exercise or purported exercise of any possessory lien or other claim or otherwise taken from the possession of the relevant Borrower and such Borrower shall fail to procure the release of such Ship within a period of fourteen (14) days thereafter; or
|
10.1.23
|
Registration: the registration of any Ship under the laws and flag of the relevant Flag State is cancelled or terminated without the prior written consent of the Facility Agent (acting on the instructions of the Lenders) or if such registration of such Ship is not renewed at least thirty (30) days prior to the expiry of such registration; or
|
10.1.24
|
Unrest: the Flag State of any Ship or any Relevant Jurisdiction becomes involved in hostilities or civil war or there is a seizure of power in the Flag State or any Relevant Jurisdiction by unconstitutional means; or
|
10.1.25
|
Environment: any Security Party and/or any other Relevant Party and/or any of their respective Environmental Affiliates fails to comply with any Environmental Law or any Environmental Approval or any of the Ships or any other Relevant Ship is involved in any incident which gives rise or may give rise to an Environmental Claim; or
|
10.1.26
|
P&I: any Borrower or the Manager or any other person fails or omits to comply with any requirements of the protection and indemnity association or other insurer with which any of the Ships is entered for insurance or insured against protection and indemnity risks (including oil pollution risks) to the effect that any cover relative to any of the Ships (including, without limitation, any cover in respect of liability for Environmental Claims arising in jurisdictions where any such Ship operates or trades) is or may be liable to cancellation, qualification or exclusion at any time; or
|
10.1.27
|
Licenses etc.: any license, authorisation, consent or approval at any time necessary to enable any Security Party to comply with its obligations under the Security Documents or the Transaction Documents or to enable the operation of any of the Ships, is revoked or withheld or modified or is otherwise not granted or fails to remain in full force and effect or if any exchange control or other law or regulation shall exist which would make any transaction under the Security Documents or the Transaction Documents, or the continuation thereof, unlawful or would prevent the performance by any Security Party of any term of the Security Documents or the Transaction Documents; or
|
10.1.28
|
Shareholdings:
|
|
(a)
|
a Borrower ceases to be a wholly-owned direct Subsidiary of the relevant Shareholder; or
|
|
(b)
|
each Shareholder ceases to be a wholly-owned indirect Subsidiary of the Olympian Asclepius Guarantor; or
|
|
(c)
|
until the Listing Date, the Olympian Asclepius Guarantor ceases to be a wholly-owned Subsidiary of the Dryships Guarantor; and, after the Listing Date, the Dryships Guarantor ceases to be the largest beneficial owner of the Olympian Asclepius
|
|
(d)
|
the Manager ceases to be legally and/or beneficially owned by such persons as have been advised to the Facility Agent in the negotiations of this Agreement;
|
10.1.29
|
Accounts: moneys are withdrawn from any of the Accounts other than in accordance with clause 14; or
|
10.1.30
|
Listing: following the Listing Date, the shares of the Olympian Asclepius Guarantor are de-listed or suspended from, or cease to trade (whether temporarily or permanently) on, the stock exchange where such shares are listed at such time; or
|
10.1.31
|
Manager: an event set forth in any of clauses 10.1.6, 10.1.7, 10.1.8, 10.1.9, 10.1.12, 10.1.13 or 10.1.14 occurs in relation to the Manager, unless the Manager is replaced as manager of each of the Ships by a person and on terms approved in writing by the Facility Agent (on instructions from the Lenders) within thirty (30) days following the occurrence of the relevant event.
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10.2
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Acceleration
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10.2.1
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the obligation of each Lender to make available its Commitment available shall be terminated, whereupon the Total Commitments shall be reduced to zero forthwith; and/or
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10.2.2
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the Loan and all interest and commitment commission accrued and all other sums payable under the Security Documents have become due and payable, whereupon the same shall, immediately or in accordance with the terms of such notice, become due and payable.
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10.3
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Demand basis
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10.4
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Position of Swap Provider
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11
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Indemnities
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11.1
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Miscellaneous indemnities
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11.1.1
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any default in payment by any Security Party of any sum under any of the Security Documents when due;
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11.1.2
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the occurrence of any other Event of Default;
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11.1.3
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any prepayment or reduction of the Loan or part thereof being made under clauses 4.2, 4.3, 4.4, 4.11, 8.2.1 or 12.1, or any other repayment or prepayment of the Loan or part thereof being made otherwise than on an Interest Payment Date relating to the part of the Loan prepaid or repaid; or
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11.1.4
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any Advance not being made for any reason (excluding any default by any Finance Party) after the Drawdown Notice for such Advance has been given; or
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11.1.5
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the Borrowers becoming obliged to repay any Advance in accordance with clauses 4.3 or 4.4,
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11.2
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Indemnity to the Facility Agent, the K-sure Agent, the Security Trustee and K-sure
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11.2.1
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investigating any event which it reasonably believes is a Default;
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11.2.2
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any amendment or supplement to any of the Security Documents and/or a request for a consent or approval from K-sure; or
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11.2.3
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acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
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11.3
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Currency indemnity
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11.4
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Environmental indemnity
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11.5
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Central Bank or European Central Bank reserve requirements indemnity
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11.6
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K-sure indemnity
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12
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Unlawfulness and increased costs
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12.1
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Unlawfulness
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12.2
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Increased costs
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12.2.1
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subject any Lender to Taxes or change the basis of Taxation of any Lender with respect to any payment under any of the Security Documents (other than Taxes or Taxation on the overall net income, profits or gains of such Lender imposed in the jurisdiction in which its principal or lending office under this Agreement is located); and/or
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12.2.2
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increase the cost to, or impose an additional cost on, the Lender or its holding company in making or keeping such Lender's Commitment available or maintaining or funding all or part of such Lender's Contribution; and/or
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12.2.3
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reduce the amount payable or the effective return to any Lender under any of the Security Documents; and/or
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12.2.4
|
reduce any Lender's or its holding company's rate of return on its overall capital by reason of a change in the manner in which it is required to allocate capital resources to such Lender's obligations under any of the Security Documents; and/or
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12.2.5
|
require any Lender or its holding company to make a payment or forego a return on or calculated by reference to any amount received or receivable by such Lender under any of the Security Documents; and/or
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12.2.6
|
require any Lender or its holding company to incur or sustain a loss (including a loss of future potential profits) by reason of being obliged to deduct all or part of such Lender's Commitment or Contribution from its capital for regulatory purposes,
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(a)
|
such Lender shall notify the Borrowers through the Facility Agent in writing of such event promptly upon its becoming aware of the same; and
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(b)
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the Borrowers shall on demand, made at any time whether or not such Lender's Contribution has been repaid, pay to the Facility Agent for the account of such Lender the amount which such Lender specifies (in a certificate setting forth the basis of the computation of such amount but not including any matters which such Lender or its holding company regards as confidential) is required to compensate such Lender and/or (as the case may be) its holding company for such liability to Taxes, cost, reduction, payment, foregone return or loss.
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12.3
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Exception
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12.3.1
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Nothing in clause 12.2 shall entitle any Lender to receive any amount in respect of compensation for any such liability to Taxes, increased or additional cost, reduction, payment, foregone return or loss to the extent that the same is the subject of an additional payment under clause 6.7 which fully compensates that Lender.
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12.3.2
|
Nothing in clause 12.2 shall entitle any Lender to receive any amount in respect of compensation for a FATCA Deduction required to be made by a Party.
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13
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Security and set-off
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13.1
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Application of moneys
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13.1.1
|
first, in or towards payment of any unpaid K-sure Premiums;
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13.1.2
|
secondly, in or towards payment, on a pro rata basis, of all unpaid fees, commissions, costs and expenses which may be owing to the Facility Agent, the Arrangers, the Security Trustee and/or the K-sure Agent or any of them under any of the Security Documents;
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13.1.3
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thirdly, in or towards payment, on a pro rata basis, of all unpaid fees, commissions, costs and expenses which may be owing to any of the Finance Parties (except the Swap Provider, the Facility Agent, the Arrangers, the Security Trustee and/or the K-sure Agent) or any of them under any of the Security Documents (except the Master Swap Agreement);
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13.1.4
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fourthly, in or towards payment to the Lenders, on a pro rata basis, of any arrears of interest in respect of the Loan or any part thereof which have become due but remain unpaid;
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13.1.5
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fifthly, in or towards payment to the Lenders, on a pro rata basis, of any amount of principal which shall have become due in respect of the Loan but remains unpaid;
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13.1.6
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sixthly, in or towards payment to the Lenders, on a pro rata basis, for any loss suffered by reason of any such payment in respect of principal set out in clause 13.1.5 above not being effected on an Interest Payment Date relating to the part of the Loan repaid;
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13.1.7
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seventhly, in or towards payment to the Finance Parties (except the Swap Provider), on a pro rata basis, of any other sums owing to each of them under any of the Security Documents (except the Master Swap Agreement) which have become due but remain unpaid;
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13.1.8
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eighthly, in or towards payment to the Lenders, on a pro rata basis, of any amount of principal which has not yet become due and payable in respect of the Loan;
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13.1.9
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ninthly, in or towards payment to the Lenders on a pro rata basis for any loss suffered by reason of any such payment of principal set out in clause 13.1.8 above not being effect on an Interest Payment Date relating to the part of the Loan repaid;
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13.1.10
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tenthly, in or towards payment to the Finance Parties (except the Swap Provider), on a pro rata basis, of any other sum owing to each of them under any of the Security Documents (except the Master Swap Agreement) which has not yet become due and payable;
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13.1.11
|
eleventhly, in or towards payment to the Swap Provider of any amount owing to it under the Master Swap Agreement; and
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13.1.12
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twelvethly, the surplus (if any) shall be paid to the Borrowers or to whomsoever else may be entitled to receive such surplus.
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13.2
|
Set-off
|
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(a)
|
Each Borrower authorises each Lender (without prejudice to any of the Lenders' rights at law, in equity or otherwise), at any time and without notice to the Borrowers, to apply any credit balance to which the relevant Borrower is then entitled standing upon any account of the relevant Borrower with any branch of such Lender in or towards satisfaction of any sum due and payable from the Borrowers or any of them to such Lender under any of the Security Documents. For this purpose, each Lender is authorised to purchase with the moneys standing to the credit of such account such other currencies as may be necessary to effect such application. No Lender shall be obliged to exercise any right given to it by this clause 13.2. Each Lender shall notify the Facility Agent and the Borrowers forthwith upon the exercise or purported exercise of any right of set-off giving full details in relation thereto and the Facility Agent shall inform the other Lenders.
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(b)
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Each Lender may also set off any matured obligations due from a Borrower under the Security Documents (to the extent beneficially owned by such Lender) against any matured obligation owed by that Lender to that Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies the Lenders may convert either obligation of a market rate of exchange in its usual course of business for the purpose of the set-off.
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13.3
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Pro rata payments
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13.3.1
|
If at any time any Lender (the "Recovering Lender") receives or recovers any amount owing to it by the Borrowers under this Agreement by direct payment, set-off or in any manner other than by payment through the Facility Agent pursuant to clauses 6.1 or 6.9 (not being a payment received from a Transferee Lender or a sub-participant in such Lender's Contribution or any other payment of an amount due to the Recovering Lender for its sole account pursuant to clauses 3.6, 5, 6.7, 11.1, 11.2, 12.1 or 12.2) the Recovering Lender shall, within two (2) Banking Days of such receipt or recovery (a "Relevant Receipt") notify the Facility Agent and the Lenders of the amount of the Relevant Receipt. If the Relevant Receipt exceeds the amount which the Recovering Lender would have received if the Relevant Receipt had been received by the Facility Agent and distributed pursuant to clauses 6.1 or 6.9 (as the case may be) then:
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(a)
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within two (2) Banking Days of demand by the Facility Agent, the Recovering Lender shall pay to the Facility Agent an amount equal (or equivalent) to the excess;
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(b)
|
the Facility Agent shall treat the excess amount so paid by the Recovering Lender as if it were a payment made by the Borrowers and shall distribute the same to the Lenders (other than the Recovering Lender) in accordance with clause 6.9; and
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(c)
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as between the Borrowers and the Recovering Lender the excess amount so re-distributed, shall be treated as not having been paid but the obligations of the Borrowers to the other Lenders shall, to the extent of the amount so re-distributed to them, be treated as discharged.
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13.3.2
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If by reason of the order of any court of competent jurisdiction any part of the Relevant Receipt subsequently has to be wholly or partly refunded by the Recovering Lender (whether to a liquidator or otherwise) each Lender to which any part of such Relevant Receipt was so re-distributed shall on request from the Recovering Lender repay to the Recovering Lender such Lender's pro-rata share of the amount which has to be refunded by the Recovering Lender.
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13.3.3
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Each Lender shall on request supply to the Facility Agent such information as the Facility Agent may from time to time request for the purpose of this clause 13.3
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13.3.4
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Nothwithstanding the foregoing provisions of this clause 13.3, no Recovering Lender shall be obliged to share any Relevant Receipt which it receives or recovers pursuant to legal proceedings taken by it to recover any sums owing to it under this Agreement with any other party which has a legal right to, but does not, either join in such proceedings or commence and diligently pursue separate proceedings to enforce its rights in the same or another court (unless the proceedings instituted by the Recovering Lender are instituted by it without prior notice having been given to such party through the Facility Agent).
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13.4
|
No release
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13.5
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No charge
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14
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Accounts
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14.1
|
General
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14.1.1
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on or before the date of this Agreement, open the Operating Accounts and the Retention Account;
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14.1.2
|
on or before the Drawdown Date of the first Advance, procure that the Olympian Asclepius Guarantor opens the Liquidity Account and deposits therein, and maintains at all times thereafter, an amount in Dollars at least equal to the minimum amount the Olympian Asclepius Guarantor has to maintain in accordance with clause 6.1.2 of the Olympian Asclepius Guarantee; and
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14.1.3
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procure that (i) all moneys payable to a Borrower in respect of the Earnings of such Borrower's Ship shall, unless and until the Facility Agent directs to the contrary pursuant to the relevant provisions of the Deed of Covenant relevant to such Ship, be paid to such Borrower's Operating Account and (ii) all moneys payable to the Borrowers under the Master Swap Agreement, be paid to one or more Operating Accounts which are subject to the Operating Accounts Pledge Provided however that if any of the moneys paid to any of the Operating Accounts are payable in a currency other than Dollars, the Account Bank shall (and the Borrowers hereby irrevocably and unconditionally instruct the Account Bank to) convert such moneys into Dollars at the Account Bank's spot rate of exchange at the relevant time for the purchase of Dollars with such currency and the term "spot rate of exchange" shall include any premium and costs of exchange payable in connection with the purchase of Dollars with such currency.
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14.2
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Account terms
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14.3
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Operating Accounts: withdrawals
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14.3.1
|
to pay any amount to the Facility Agent in or towards payments of any instalments of interest or principal or any other amounts then payable pursuant to the Security Documents;
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14.3.2
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to transfer to the Retention Account on each Retention Date all or part of the Retention Amount for such Retention Date in order to comply with its obligations under clause 14.4;
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14.3.3
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to pay the proper and reasonable operating expenses of its Ship;
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14.3.4
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to pay the proper and reasonable expenses of administering its affairs; and
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14.3.5
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to pay cash dividends to its Shareholder to the extent permitted by clause 8.3.12.
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14.4
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Retention Account: credits and withdrawals
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14.4.1
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The Borrowers hereby jointly and severally undertake with each Finance Party that they will, from the date of this Agreement and so long as any moneys are owing under the Security Documents, on each Retention Date pay to the Account Bank for credit to the Retention Account, the Retention Amount for such Retention Date provided however that, to the extent that there are moneys standing to the credit of the Operating Accounts (or any of them) as at the relevant Retention Date, such moneys shall, up to an amount equal to the Retention Amount for such Retention Date, be transferred to the Retention Account on that Retention Date (and the Borrowers hereby irrevocably authorise the Account Bank to effect each such transfer) and to that extent the Borrowers' obligations to make the payments referred to in this clause 14.4.1 shall have been fulfilled upon such transfer being effected.
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14.4.2
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Unless and until there shall occur an Event of Default (whereupon the provisions of clause 14.6 shall apply), all Retention Amounts credited to the Retention Account together with interest from time to time accruing or at any time accrued on any amounts standing to the credit of the Retention Account from time to time, shall be applied by the Account Bank (and the Borrowers hereby irrevocably authorise the Account Bank so to apply the same) upon each Repayment Date and/or on each day that interest is payable pursuant to clause 3.1, in or towards payment to the Facility Agent of the relevant instalment then falling due for repayment or, as the case may be, the relevant amount of interest then due. Each such application by the Account Bank shall constitute a payment in or towards satisfaction of the Borrowers' corresponding payment obligations under this Agreement but shall be strictly without prejudice to the obligations of each of the Borrowers to make any such payment to the extent that the aforesaid application by the Account Bank is insufficient to meet the same.
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14.4.3
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Unless the Facility Agent otherwise agrees in writing, none of the Borrowers shall be entitled to withdraw any moneys from the Retention Account at any time from the date of this Agreement and so long as any moneys are owing under the Security Documents.
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14.5
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Liquidity Account: withdrawals
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14.6
|
Application of accounts
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14.7
|
Charging of Accounts
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15
|
Assignment, transfer and lending office
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15.1
|
Benefit and burden
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15.2
|
No assignment by Borrowers
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15.3
|
Assignments and transfers by Lenders
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15.3.1
|
Subject to this clause 15.3 and prior written consent of K-sure pursuant to the K-sure Policies, any Lender (the "Existing Lender") may at any time, assign any of its rights or transfer any of its rights and obligations under this Agreement and the Security Documents to any other bank or financial institution or trust, fund or other entity (without limitation to the generality of the foregoing, K-sure) which is regularly engaged in or established for the purpose of making, purchasing or investing in, loans, securities or other financial assets or to any special purpose vehicle (including, without limitation, by way or for the purpose of securitisation or other similar transaction in relation to this Agreement) (a "New Lender"). The Existing Lender shall give prior written notice of such assignment or transfer to the Facility Agent and the other Lenders. The consent of the Facility Agent, the Security Trustee, the Account Bank, the Arrangers or the Swap Provider to an assignment or transfer by a Lender is not required. The consent of the Borrowers to an assignment or transfer by a Lender is not required (including in the case of a transfer for the purposes of a securitisation or other similar transaction in relation to this Agreement). An assignment will only be effective on receipt by the Facility Agent of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Existing Lender.
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15.3.2
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A transfer will only be effective if the procedure set out in clause 15.3.3 is complied with.
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15.3.3
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No such transfer is binding on, or effective in relation to, the Borrowers or the Facility Agent unless it is effected or evidenced by a Substitution Certificate which complies with the provisions of this clause 15.3 and is signed by or on behalf of the Existing Lender, the New Lender and the Facility Agent (on behalf of itself, the Borrowers, the Security Trustee, the Swap Provider, the Account Bank and the other Lenders). Upon signature of any such Substitution Certificate by the Facility Agent, which signature shall be effected as promptly as is practicable after such Substitution Certificate has been delivered to the Facility Agent, and subject to the terms of such Substitution Certificate, such Substitution Certificate shall have effect as set out below. The following further provisions shall have effect in relation to any Substitution Certificate:
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(a)
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a Substitution Certificate may be in respect of a Lender's rights in respect of all or part, of its Commitment and shall be in respect of the same proportion of its Contribution;
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(b)
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a Substitution Certificate shall only be in respect of rights and obligations of the Existing Lender in its capacity as a Lender and shall not transfer its rights and obligations as an agent, or in any other capacity, as the case may be and such other rights and obligations may only be transferred in accordance with any applicable provisions of this Agreement;
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(c)
|
a Substitution Certificate shall take effect in accordance with English law as follows:
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(i)
|
to the extent specified in the Substitution Certificate, the Existing Lender's payment rights and all its other rights (other than those referred to in sub-clause 15.3.3(b)) under this Agreement are assigned to the New Lender
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(ii)
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the Existing Lender's Commitment is discharged to the extent specified in the Substitution Certificate;
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(iii)
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the New Lender becomes a Lender with a Contribution and/or a Commitment of the amounts specified in the Substitution Certificate;
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(iv)
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the New Lender becomes bound by all the provisions of this Agreement and the other Security Documents which are applicable to the Lenders, including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification of, the Arrangers, the Facility Agent and the Security Trustee in accordance with clause 16 and to the extent that the New Lender becomes bound by those provisions, the Existing Lender ceases to be bound by them;
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(v)
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an Advance or part of an Advance which the New Lender makes after the Substitution Certificate comes into effect ranks in point of priority and security in the same way as it would have ranked had it been made by the Existing Lender, assuming that any defects in the Existing Lender's title and any rights or equities of any Security Party against the Existing Lender had not existed; and
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(vi)
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the New Lender becomes entitled to all the rights under this Agreement which are applicable to the Lenders generally and those under clauses 3.6, 5 and 12 and to the extent that the New Lender becomes entitled to such rights, the Existing Lender ceases to be entitled to them;
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15.3.4
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the rights and equities of the Borrowers or of any other Security Party referred to above include, but are not limited to, any right of set-off and any other kind of cross-claim; and
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15.3.5
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the Borrowers, the Account Bank, the Security Trustee, the Arrangers, the Swap Provider and the Lenders hereby irrevocably authorise and instruct the Facility Agent to sign any such Substitution Certificate on their behalf and undertake not to withdraw, revoke or qualify such authority or instruction at any time. Promptly upon its signature of any Substitution Certificate, the Facility Agent shall notify the Borrowers, the Security Trustee, the Existing Lender, the New Lender and each of the other Finance Parties.
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15.4
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Reliance on Substitution Certificate
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15.4.1
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The Facility Agent shall be entitled to rely on any Substitution Certificate believed by it to be genuine and correct and to have been presented or signed by the persons by whom it purports to have been presented or signed, and shall not be liable to any of the parties to this Agreement and the Security Documents for the consequences of such reliance.
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15.4.2
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The Facility Agent shall at all times during the continuation of this Agreement maintain a register in which it shall record the name, Commitments, Contributions and administrative details (including the lending office) from time to time of the Lenders holding a Substitution Certificate and the date at which the transfer referred to in such Substitution Certificate held by each Lender was transferred to such Lender, and the Facility Agent shall make the said register available for inspection by any Lender and any Borrower during normal banking hours upon receipt by the Facility Agent of reasonable prior notice requesting the Facility Agent to do so.
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15.4.3
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The entries on the said register shall, in the absence of manifest error, be conclusive in determining the identities of the Commitments, the Contributions and the Substitution Certificates held by the Lenders from time to time and the principal amounts of such Substitution Certificates and may be relied upon by the Facility Agent and the other Security Parties for all purposes in connection with this Agreement and the Security Documents.
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15.6
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Documenting assignments and transfers
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15.7
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Sub-participation
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15.8
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Lending offices
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15.9
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Disclosure of information
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15.9.1
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K-sure or any employee, officer, director or representative of such entity;
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15.9.2
|
any person to (or through) whom that Finance Party assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement;
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15.9.3
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any person with (or through) whom that Finance Party enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or the Security Parties;
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15.9.4
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any person to whom, and to the extent that, information is required for the purposes of achieving a successful securitisation or other similar transaction;
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15.9.5
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any person to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation;
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15.9.6
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any other Finance Party, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such person's employ or duties;
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15.9.7
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each Builder, Charterer, or any employee, officer, director or representative of such entity which needs to know such information or receive such document in the course of such person's employ or duties;
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15.9.8
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auditors, insurance and reinsurance brokers, insurers and reinsurers or other professional advisers (including legal advisers);
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15.9.9
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any person who has entered into a confidentiality undertaking substantially in a recommended form of the Loan Market Association; and
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15.9.10
|
any other person who may propose entering or may enter into contractual relations with such Finance Party,
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15.10
|
Transfer to K-sure
|
|
(a)
|
the obligations of the Borrowers and the Security Parties (and of any of them) under this Agreement and each of the Security Documents shall not be discharged nor affected in any way;
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(b)
|
K-sure shall be subrogated to the respective rights of the Lenders against the Borrowers and the Security Parties; and
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(c)
|
K-sure shall be entitled to the extent of such payment to exercise the respective rights of the Lenders (whether present or future) against the Borrowers and the Security Parties (and against any of them) pursuant to this Agreement and the Security Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued thereon are fully reimbursed to K-sure.
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16
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Arrangers, Facility Agent, Security Trustee, K-sure Agent and Account Bank
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16.1
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Appointment of the Facility Agent
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16.1.1
|
to execute such documents as may be approved by the Lenders for execution by the Facility Agent; and
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16.1.2
|
(whether or not by or through employees or agents) to take such action on such Lender's or (as the case may be) the Swap Provider's behalf and to exercise such rights, remedies, powers and discretions as are specifically delegated to the Facility Agent by this Agreement and/or any other Security Document, together with such powers and discretions as are reasonably incidental thereto.
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16.2
|
Facility Agent's actions
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16.3
|
Facility Agent's duties
|
16.3.1
|
promptly notify each Lender and the Swap Provider of the contents of each notice, certificate or other document received by it from the Borrowers under or pursuant to clause 8; and
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16.3.2
|
(subject to the other provisions of this clause 16) take (or instruct the Security Trustee to take) such action or, as the case may be, refrain from taking (or authorise the Security Trustee to refrain from taking) such action with respect to the exercise of any of its rights, remedies, powers and discretions as agent, as the Lenders may direct.
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16.4
|
Facility Agent's rights
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16.4.1
|
in the exercise of any right, remedy, power or discretion in relation to any matter, or in any context, not expressly provided for by this Agreement or any of the other Security Documents, act or, as the case may be, refrain from acting (or authorise the Security Trustee to act or refrain from acting) in accordance with the instructions of the Lenders and shall be fully protected in so doing;
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16.4.2
|
unless and until it shall have received directions from the Lenders, take such action or, as the case may be, refrain from taking such action (or authorise the Security Trustee to take or refrain from taking such action) in respect of a Default of which the Facility Agent has actual knowledge as it shall deem advisable in the best interests of the Lenders and the Swap Provider (but shall not be obliged to do so);
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16.4.3
|
refrain from acting (or authorise the Security Trustee to refrain from acting) in accordance with any instructions of the Lenders to institute any legal proceedings arising out of or in connection with this Agreement or any of the other Security Documents until it and/or the Security Trustee has been indemnified and/or secured to its satisfaction against any and all costs, expenses or liabilities (including legal fees) which it would or might incur as a result;
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16.4.4
|
deem and treat (i) each Lender as the person entitled to the benefit of the Contribution of such Lender for all purposes of this Agreement unless and until a notice shall have been filed with the Facility Agent pursuant to clause 15.3 and shall have become effective, and (ii) the office set opposite the name of each of the Lenders in schedule 1 to be such Lender's lending office, unless and until a written notice of change of lending office shall have been received by the Facility Agent and the Facility Agent may act upon any such notice unless and until the same is superseded by a further such notice;
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16.4.5
|
rely as to matters of fact which might reasonably be expected to be within the knowledge of any Security Party upon a certificate signed by any director or officer of the relevant Security Party on behalf of the relevant Security Party; and
|
16.4.6
|
do anything which is in its opinion necessary or desirable to comply with any law or regulation in any jurisdiction.
|
16.5
|
No liability of Arrangers, K-sure Agent or Facility Agent
|
16.5.1
|
be obliged to make any enquiry as to the use of any of the proceeds of any Advance unless (in the case of the Facility Agent) so required in writing by a Lender, in which case the Facility Agent shall promptly make the appropriate request to the Borrowers; or
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16.5.2
|
be obliged to make any enquiry as to any breach or default by the Borrowers or any of them or any other Security Party in the performance or observance of any of the provisions of this Agreement or any of the other Security Documents or as to the existence of a Default unless (in the case of the Facility Agent) the Facility Agent has actual knowledge thereof or has been notified in writing thereof by a Lender or the Swap Provider, in which case the Facility Agent shall promptly notify the Lenders of the relevant event or circumstance; or
|
16.5.3
|
be obliged to enquire whether or not any representation or warranty made by the Borrowers or any of them or any other Security Party pursuant to this Agreement or any of the other Security Documents is true; or
|
16.5.4
|
be obliged to do anything (including, without limitation, disclosing any document or information) which would, or might in its opinion, be contrary to any law or regulation or be a breach of any duty of confidentiality or otherwise be actionable or render it liable to any person; or
|
16.5.5
|
be obliged to account to any Lender or the Swap Provider for any sum or the profit element of any sum received by it for its own account; or
|
16.5.6
|
be obliged to institute any legal proceedings arising out of or in connection with this Agreement or any of the other Security Documents or any of the K-sure Policies other than on the instructions of the Lenders; or
|
16.5.7
|
be liable to any Lender or the Swap Provider for any action taken or omitted under or in connection with this Agreement or any of the other Security Documents or any of the K-sure Policies unless caused by its gross negligence or wilful misconduct.
|
16.6
|
Non-reliance on Arranger or Facility Agent or K-sure Agent
|
16.7
|
No responsibility on Arrangers, the K-sure Agent or the Facility Agent for Borrowers' performance
|
16.7.1
|
on account of the failure of any Security Party to perform its obligations under any of the Security Documents or of K-sure to perform its obligations under any of the K-sure Policies; or
|
16.7.2
|
for the financial condition of any Security Party or K-sure; or
|
16.7.3
|
for the completeness or accuracy of any statements, representations or warranties in any of the Security Documents or any of the K-sure Policies or any document delivered under any of the Security Documents or any of the K-sure Policies; or
|
16.7.4
|
for the execution, effectiveness, adequacy, genuineness, validity, enforceability or admissibility in evidence of any of the Security Documents or any of the K-sure Policies or of any certificate, report or other document executed or delivered under any of the Security Documents or any of the K-sure Policies; or
|
16.7.5
|
to investigate or make any enquiry into the title of any of the Borrowers or any other Security Party to the Ships or any other security or any part thereof; or
|
16.7.6
|
for the failure to register any of the Security Documents or any of the K-sure Policies with any official or regulatory body or office or elsewhere; or
|
16.7.7
|
for taking or omitting to take any other action under or in relation to any of the Security Documents of any of the K-sure Policies or any aspect of any of the Security Documents or any of the K-sure Policies; or
|
16.7.8
|
on account of the failure of the Security Trustee to perform or discharge any of its duties or obligations under the Security Documents; or
|
16.7.9
|
otherwise in connection with this Agreement or its negotiation or for acting (or, as the case may be, refraining from acting) in accordance with the instructions of the Lenders.
|
16.8
|
Reliance on documents and professional advice
|
16.9
|
Other dealings
|
16.10
|
Rights of Facility Agent as Lender; no partnership
|
16.11
|
Amendments and waivers
|
16.11.1
|
Subject always to the requirements of the K-Sure Policies, the Facility Agent may, with the written consent of all Lenders (or if and to the extent expressly authorised by the other provisions of any of the Security Documents) and, if so instructed by all Lenders, shall:
|
|
(a)
|
agree (or authorise the Security Trustee to agree) amendments or modifications to any of the Security Documents with the Borrowers and/or any other Security Party; and/or
|
|
(b)
|
vary or waive breaches of, or defaults under, or otherwise excuse performance of, any provision of any of the other Security Documents by the Borrowers and/or any other Security Party (or authorise the Security Trustee to do so).
|
16.11.2
|
No amendment or waiver may be made before the date falling ten (10) business days after the terms of that amendment or waiver have been notified by the Facility Agent to the Lenders. The Facility Agent shall notify the Lenders reasonably promptly of any amendments or waivers proposed by the Borrowers.
|
16.11.3
|
If the Facility Agent or a Lender reasonably believes that an amendment or waiver may constitute a "material modification" for the purposes of FATCA that may result (directly or indirectly) in a Party being required to make a FATCA Deduction and the Facility Agent or that Lender (as the case may be) notifies the Borrowers and the Facility Agent accordingly, that amendment or waiver may not be effected without the consent of the Facility Agent or that Lender (as the case may be).
|
16.12
|
Reimbursement and indemnity by Lenders
|
16.13
|
Retirement of Facility Agent
|
16.13.1
|
The Facility Agent may, having given to the Borrowers, each of the Lenders and the Swap Provider not less than fifteen (15) days' notice of its intention to do so, retire from its appointment as Facility Agent under this Agreement, provided that no such retirement shall take effect unless there has been appointed by the Lenders and the Swap Provider as a successor agent:
|
|
(a)
|
a Lender nominated by all Lenders or, failing such nomination,
|
|
(b)
|
a Related Company of the Facility Agent nominated by the Facility Agent which the Lenders hereby irrevocably and unconditionally agree to appoint or, failing such nomination,
|
|
(c)
|
any reputable and experienced bank or financial institution nominated by the retiring Facility Agent.
|
16.13.2
|
Upon any such successor as aforesaid being appointed, the retiring Facility Agent shall be discharged from any further obligation under the Security Documents (but shall continue to have the benefit of this clause 16 in respect of any action it has taken or refrained from taking prior to such discharge) and its successor and each of the other parties to this Agreement shall have the same rights and obligations among themselves as they would have had if such successor had been a party to this Agreement in place of the retiring Facility Agent. The retiring Facility Agent shall (at the expense of the Borrowers) provide its successor with copies of such of its records as its successor reasonably requires to carry out its functions under the Security Documents.
|
16.13.3
|
The Facility Agent shall retire in accordance with clause 16.13.1 if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:
|
|
(a)
|
the Facility Agent fails to respond to a request under clause 8.1.18 and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
|
(b)
|
the information supplied by the Facility Agent pursuant to clause 8.1.18 indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
|
(c)
|
the Facility Agent notifies the Borrowers and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,
|
16.14
|
Appointment and retirement of Security Trustee
|
16.14.1
|
Appointment
|
16.14.2
|
Retirement
|
|
(a)
|
Without prejudice to clause 16.13, the Security Trustee may, having given to the Borrowers, the Facility Agent, the K-sure Agent, the Lenders and the Swap Provider not less than fifteen (15) days' notice of its intention to do so, retire from its appointment as Security Trustee under this Agreement and any Trust Deed, provided that no such retirement shall take effect unless there has been appointed by the Lenders, the Facility Agent, the K-sure Agent and the Swap Provider as a successor security agent and trustee:
|
|
(i)
|
a bank or trust corporation nominated by all Lenders or, failing such nomination;
|
|
(ii)
|
a Related Company of the Security Trustee nominated by the Security Trustee which the Facility Agent, the Swap Provider, the K-sure Agent and the Lenders hereby irrevocably and unconditionally agree to appoint or, failing such nomination; and
|
|
(iii)
|
any bank or trust corporation nominated by the retiring Security Trustee,
|
|
(b)
|
Upon any such successor as aforesaid being appointed, the retiring Security Trustee shall be discharged from any further obligation under the Security Documents (but shall continue to have the benefit of this clause 16 in respect of any action it has taken or refrained from taking prior to such discharge) and its successor and each of the other parties to this Agreement shall have the same rights and obligations among themselves as they would have had if such successor had been a party to this Agreement in place of the retiring Security Trustee. The retiring Security Trustee shall (at the expense of the Borrowers) provide its successor with copies of such of its records as its successor reasonably requires to carry out its functions under the Security Documents.
|
|
(c)
|
The Security Trustee shall retire in accordance with clause 16.14.2(a) if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Security Trustee under the Finance Documents, either:
|
|
(i)
|
the Security Trustee fails to respond to a request under clause 8.1.18 and a Lender reasonably believes that the Security Trustee will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
|
(ii)
|
the information supplied by the Security Trustee pursuant to clause 8.1.18 indicates that the Security Trustee will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
|
(iii)
|
the Security Trustee notifies the Borrowers and the Lenders that the Security Trustee will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,
|
16.15
|
Powers and duties of the Security Trustee
|
16.15.1
|
The Security Trustee shall have no duties, obligations or liabilities to the Facility Agent, the Swap Provider or any of the Lenders and the Facility Agent beyond those expressly stated in any of the Security Documents. Each of the Facility Agent, the K-sure Agent, the Swap Provider and the Lenders hereby authorises the Security Trustee to enter into and execute:
|
|
(a)
|
each of the Security Documents to which the Security Trustee is or is intended to be a party; and
|
|
(b)
|
any and all such other Security Documents as may be approved by the Facility Agent in writing (acting on the instructions of the Lenders) for entry into by the Security Trustee,
|
16.15.2
|
The Security Trustee may, with the prior consent of the Lenders communicated in writing by the Facility Agent, concur with any of the Security Parties to:
|
|
(a)
|
amend, modify or otherwise vary any provision of the Security Documents to which the Security Trustee is or is intended to be a party; or
|
|
(b)
|
waive breaches of, or defaults under, or otherwise excuse performance of, any provision of the Security Documents to which the Security Trustee is or is intended to be a party.
|
16.15.3
|
The Security Trustee shall (subject to the other provisions of this clause 16) take such action or, as the case may be, refrain from taking such action, with respect to any of its rights, powers and discretions as security agent and trustee, as the Facility Agent may direct. Subject as provided in the foregoing provisions of this clause, unless and until the Security Trustee shall have received such instructions from the Facility Agent, the Security Trustee may, but shall not be obliged to, take (or refrain from taking) such action under or pursuant to the Security Documents referred to in clause 16.14.1 as the Security Trustee shall deem advisable in the best interests of the Finance Parties provided that (for the avoidance of doubt), to the extent that this clause might otherwise be construed as authorising the Security Trustee to take, or refrain from taking, any action of the nature referred to in clause 16.15.2 - and for which the prior written consent of the Lenders is expressly required under clause16.5.2 - clause 16.15.2 shall apply to the exclusion of this clause.
|
16.15.4
|
None of the Lenders nor the Swap Provider nor the Facility Agent nor the K-sure Agent shall have any independent power to enforce any of the Security Documents referred to in clause 16.14.1 or to exercise any rights, discretions or powers or to grant any consents or releases under or pursuant to such Security Documents or any of them or otherwise have direct recourse to the security and/or guarantees constituted by such Security Documents or any of them except through the Security Trustee.
|
16.15.5
|
For the purpose of this clause 16, the Security Trustee may, rely and act in reliance upon any information from time to time furnished to the Security Trustee by the Facility Agent (whether pursuant to clause 16.15.6 or otherwise) unless and until the same is superseded by further such information, so that the Security Trustee shall have no liability or responsibility to any party as a consequence of placing reliance on and acting in reliance upon any such information unless the Security Trustee has actual knowledge that such information is inaccurate or incorrect.
|
16.15.6
|
Without prejudice to the foregoing each of the Facility Agent, the Swap Provider and the Lenders (whether directly or through the Facility Agent) shall provide the Security Trustee with such written information as it may reasonably require for the purpose of carrying out its duties and obligations under the Security Documents referred to in clause 16.14.1.
|
16.15.7
|
Each Lender shall reimburse the Security Trustee (rateably in accordance with such Lender's Commitment or, if after the first drawdown, Contribution), to the extent that the Security Trustee is not reimbursed by the Borrowers, for the costs, charges and expenses incurred by the Facility Agent which are expressed to be payable by the Borrowers under clause 5.2 including (in each case) the fees and expenses of legal or other professional advisers. Each Lender shall on demand indemnify the Security Trustee (rateably in accordance with such Lender's Commitment or, if after the first drawdown, Contribution) against all liabilities, damages, costs and claims whatsoever incurred by the Security Trustee in connection with any of the Security Documents or the performance of its duties under any of the Security Documents or any action taken or omitted by the Security Trustee under any of the Security Documents, unless such liabilities, damages, costs or claims arise from the Security Trustee's own gross negligence or wilful misconduct.
|
16.16
|
Trust provisions
|
16.16.1
|
In its capacity as trustee in relation to the Security Documents specified in clause 16.14.1, the Security Trustee shall, without prejudice to any of the powers, discretions and immunities conferred upon trustees by law (and to the extent not inconsistent with the provisions of any of those Security Documents), have all the same powers and discretions as a natural person acting as the beneficial owner of such property and/or as are conferred upon the Security Trustee by any of those Security Documents.
|
16.16.2
|
It is expressly declared that, in its capacity as trustee in relation to the Security Documents specified in clause 16.14.1, the Security Trustee shall be entitled to invest moneys forming part of the security and which, in the opinion of the Security Trustee, may not be paid out promptly following receipt in the name or under the control of the Security Trustee in any of the investments for the time being authorised by law for the investment by trustees of trust moneys or, subject to the Lenders' prior written consent, in any other property or investments whether similar to the aforesaid or not or by placing the same on deposit in the name or under the control of the Security Trustee as the Security Trustee may think fit without being under any duty to diversify its investments and the Security Trustee may at any time vary or transpose any such property or investments for or into any others of a like nature and shall not be responsible for any loss due to depreciation in value or otherwise of such property or investments. Any investment of any part or all of the security may, at the discretion of the Security Trustee, be made or retained in the names of nominees.
|
16.17
|
Independent action by Finance Parties
|
16.18
|
Common Facility Agent, K-sure Agent and Security Trustee
|
16.19
|
Co-operation to achieve agreed priorities of application
|
16.20
|
Prompt distribution of proceeds
|
16.21
|
Role of the Account Bank
|
16.21.1
|
The Account Bank shall be responsible for performing the functions of an Account Bank expressly mentioned herein and, in relation to the Liquidity Account only, in the Olympian Asclepius Guarantee.
|
16.21.2
|
Except as specifically provided in the relevant Security Documents, the Account Bank has no obligations of any kind to any other Finance Party under or in connection with any Security Document.
|
16.21.3
|
The Account Bank (in its capacity as Account Bank) shall not be deemed to be an agent, trustee or fiduciary of any other Finance Party or any Security Party under or in connection with any Security Document. The Account Bank does not have any proprietary interest in the amounts credited to the Accounts but merely holds such amounts as banker subject to the terms of this Agreement and, in relation to the Liquidity Account only, the Olympian Asclepius Guarantee.
|
16.21.4
|
The duties of the Account Bank under the Security Documents are solely mechanical and administrative in nature.
|
16.21.5
|
The Account Bank and the Borrowers shall comply with the terms of the provisions relating to it hereunder.
|
16.22
|
Account Bank's business
|
16.23
|
Rights and discretions of the Account Bank
|
16.23.1
|
The Account Bank may rely on:
|
|
(a)
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
|
(b)
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
16.23.2
|
The Account Bank may assume unless it has received notice to the contrary that:
|
|
(a)
|
no Event of Default has occurred and is continuing (unless it has actual knowledge of such an Event of Default arising); and
|
|
(b)
|
any right, power, authority or discretion vested in any Finance Party or Security Party has not been exercised.
|
16.24
|
Excluded obligations
|
16.24.1
|
be bound to enquire as to the occurrence or otherwise of a Default or the performance by any other party to any of the Security Documents of its obligations thereunder;
|
16.24.2
|
be bound to exercise any right, power or discretion vested in such Account Bank under any of the Security Documents;
|
16.24.3
|
be bound to account to any other party hereto for any sum or the profit element of any sum received by it for its own account; or
|
16.24.4
|
be bound to disclose to any other person any information relating to any other person other than to a Lender to the extent expressly required under the Security Documents.
|
16.25
|
Exclusion of liability
|
16.26
|
No actions
|
16.27
|
Further Account Bank provisions
|
16.27.1
|
The Account Bank shall not be under any duty to give the amounts standing to the credit of the Accounts hereunder any greater degree of care than it gives to its own similar property.
|
16.27.2
|
This Agreement and the other Security Documents to which the Account Bank is a party expressly set forth all the duties of the Account Bank. The Account Bank shall not be bound by (and shall be deemed not to have notice of) the provisions of any other agreement entered into by or involving the Borrowers and/or the Olympian Asclepius Guarantor except this Agreement, the other Security Documents to which the Account Bank is a party and any bank mandate signed between the Account Bank and the Borrowers or, as the case may be, the Olympian Asclepius Guarantor and no implied duties or obligations of the Account Bank shall be read into this Agreement and any of the other Security Documents to which the Account Bank is a party.
|
16.27.3
|
The Account Bank is under no duty to ensure that funds withdrawn from the Accounts are actually applied for the purpose for which they were withdrawn or that any instruction or direction by the Borrowers or the Olympian Asclepius Guarantor is accurate, correct or in accordance with this Agreement and, in relation to the Liquidity Account only, the Olympian Asclepius Guarantee and any of the other Security Documents to which the Account Bank is a party.
|
16.27.4
|
The Borrowers unconditionally agree to the use of any form of telephonic or electronic monitoring or recording by the Account Bank as the Account Bank deems appropriate for security and service purposes.
|
16.27.5
|
The Account Bank shall not be liable to any person or entity including, but not limited to the Borrowers or, as the context may require, the Olympian Asclepius Guarantor, for any loss, liability, claim, action, damages or expenses arising out of or in connection with its performance of or its failure to perform any of its obligations under this Agreement or any of the other Security Documents to which the Account Bank is a party, save as are caused by its own gross negligence or wilful default.
|
16.27.6
|
Notwithstanding the foregoing, under no circumstance will the Account Bank be liable to any party for any consequential loss (inter alia, being loss of business, goodwill, opportunity or profit) even if advised of the possibility of such loss or damage.
|
16.27.7
|
The Borrowers shall indemnify and keep the Account Bank (and, without limitation, its directors, officers, agents and employees) indemnified and hold each of them harmless from and against any and all losses, liabilities, claims, actions, damages, fees and expenses, (including lawyers' fees and disbursements), arising out of or in connection with this Agreement, save as are caused by their own gross negligence or wilful default.
|
16.27.8
|
Without prejudice to clause 16.27.9, the Account Bank shall not be obliged to make any payment or otherwise to act on any request or instruction notified to it under this Agreement or any of the other Security Documents to which the Account Bank is party if it is unable:
|
|
(a)
|
to verify any signature on the notice of request or instruction against the specimen signature provided for the relevant duly authorised representative of the Borrowers hereunder; and
|
|
(b)
|
to validate the authenticity of a request by a Borrower.
|
16.27.9
|
The Account Bank shall be entitled to rely upon any order, judgment, decree, certification, demand, notice, or other written instrument delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or validity or the service thereof. The Account Bank may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorised to do so. The Borrowers acknowledge that they are fully aware of the risks associated with transmitting instructions via facsimile and telephone.
|
16.27.10
|
The Account Bank does not have any interest in the amounts standing to the credit of the Accounts deposited hereunder.
|
16.27.11
|
This clause 16.27.11 and clauses 16.27.5, 16.27.6, 16.27.7 and 16.27.9 above, shall survive notwithstanding any termination of this Agreement or the resignation or replacement of the Account Bank.
|
16.27.12
|
The Account Bank shall have no responsibility for the contents of any ruling of the arbitrators or any third party contemplated in any other document, to which the Borrowers are privy, as a means to resolve disputes and may rely without any liability upon the contents thereof.
|
16.27.13
|
No printed or other matter in any language (including without limitation prospectuses, notices, reports and promotional material) which mentions the Account Bank's name or the rights, powers or duties of the Account Bank shall be issued by the Borrowers or any other Security Party or on their behalf unless the Account Bank shall first have given its written consent thereto.
|
16.27.14
|
The obligations and duties of the Account Bank will be performed only by the Account Bank and, except to the extent required under any applicable law, are not obligations or duties of any other person (including any branch or office of the Account Bank) and the rights of the Borrowers and the Security Trustee with respect to the Account Bank extend only to such Account Bank and, except to the extent required under any applicable law, do not extend to any other person.
|
16.27.15
|
The Account Bank may use (and its performance will be subject to the rules of) any communications, clearing or payment system, intermediary bank or other system.
|
16.28
|
Cessation by the Account Bank
|
16.28.1
|
The Account Bank may at any time (without assigning any reason therefor) notify the Facility Agent and the Borrowers in writing that it wishes to cease to be the Account Bank under this Agreement and upon receipt of such notice the Facility Agent (acting on the instructions of the Lenders), with the consent of the Borrowers (such consent not to be unreasonably withheld or delayed), may nominate as a successor to the Account Bank:
|
|
(a)
|
any Lender;
|
|
(b)
|
if none are able or willing to do so, another bank with which the Borrowers have an existing relationship; or
|
|
(c)
|
or any other banking institution approved by the Lenders,
|
16.28.2
|
The Account Bank's resignation shall only take effect upon the successor Account Bank notifying the Facility Agent that it accepts its appointment and such successor acceding to each of the Finance Documents to which the retiring Account Bank was a party.
|
16.28.3
|
If there is a change of Account Bank, the amount (if any) standing to the credit of the Accounts maintained with the old Account Bank will be transferred to the corresponding Accounts maintained with the new Account Bank immediately upon the appointment taking effect, whereupon the old Account Bank shall be discharged from all further obligations arising in connection with this Agreement.
|
16.28.4
|
The Borrowers shall, and shall procure that the Olympian Asclepius Guarantor shall, do all such things as the Facility Agent and the Security Trustee may reasonably request in order to facilitate any such change (including, without limitation, the execution of bank mandate forms and replacement Encumbrance over the Accounts (other than the Liquidity Account)). In all cases any change of the Account Bank shall be made at the cost of the Finance Parties.
|
16.28.5
|
Upon the appointment of a successor, the retiring Account Bank shall be discharged from any further obligation in respect of the Security Documents but shall remain entitled to the benefit of clauses 16.21 to 16.28. Its successor and each of the other parties hereto and/or the other Security Documents to which the Account Bank is a party shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original party hereto and/or the other Security Documents to which the Account Bank is a party.
|
16.28.6
|
The Lenders may, by notice to the Account Bank, require it to resign, and upon receipt of such notice the Account Bank shall resign.
|
16.28.7
|
The retiring Account Bank shall, at its own cost, make available to the successor Account Bank such documents and records and provide such assistance as the successor Account Bank may reasonably request for the purposes of performing its functions as the Account Bank under the relevant Security Documents.
|
16.29
|
Appointment of K-sure Agent
|
16.29.1
|
Each of the Lenders irrevocably appoints the K-sure Agent as its agent for the purposes of this Agreement and the K-sure Policies. By virtue of such appointment, each of the Lenders hereby authorises the K-sure Agent:
|
|
(a)
|
to execute the K-sure Policies and any documents, policies, application forms etc in connection therewith; and
|
|
(b)
|
(whether or not by or through employees or agents) to take such action on such Lender's behalf and to exercise such rights, remedies, powers and discretions as are specifically delegated to the K-sure Agent by this Agreement and/or the K-sure Policies, together with such powers and discretions as are reasonably incidental thereto.
|
16.30
|
K-sure Agent's actions
|
16.31
|
K-sure Agent's duties
|
16.31.1
|
promptly notify each Lender of the contents of each notice, certificate or other document received by it from the Borrowers under or pursuant to clause 8 or from K-sure under or pursuant to any of the K-sure Policies; and
|
16.31.2
|
(subject to the other provisions of this clause 16) take such action or, as the case may be, refrain from taking such action with respect to the exercise of any of its rights, remedies, powers and discretions as agent, as the Lenders may direct (including the submission of claims under any of the K-sure Policies).
|
16.32
|
K-sure Agent's rights
|
16.32.1
|
in the exercise of any right, remedy, power or discretion in relation to any matter, or in any context, not expressly provided for by this Agreement or any of the K-sure Policies act or, as the case may be, refrain from acting in accordance with the instructions of the Lenders and shall be fully protected in so doing;
|
16.32.2
|
refrain from acting in accordance with any instructions of the Lenders to the extent such instructions are contrary to the provisions of any of the K-sure Policies;
|
16.32.3
|
in the exercise of any right, remedy, power or discretion in relation to any matter, or in any context, not act or, as the case may be, refrain from acting before consulting on such matter with K-sure;
|
16.32.4
|
refrain from acting in accordance with any instructions of the Lenders to institute any legal proceedings arising out of or in connection with any of the K-sure Policies until it has been indemnified and/or secured to its satisfaction against any and all costs, expenses or liabilities (including legal fees) which it would or might incur as a result;
|
16.32.5
|
deem and treat (i) each Lender as the person entitled to the benefit of the K-sure Policies unless and until a notice shall have been filed with the Facility Agent pursuant to clause 15.3 and shall have become effective, and (ii) the office set opposite the name of each of the Lenders in schedule 1 to be such Lender's lending office, unless and until a written notice of change of lending office shall have been received by the Facility Agent and communicated to the K-sure Agent and the K-sure Agent may act upon any such notice unless and until the same is superseded by a further such notice;
|
16.32.6
|
rely as to matters of fact which might reasonably be expected to be within the knowledge of any Security Party upon a certificate signed by any director or officer of the relevant Security Party on behalf of the relevant Security Party; and
|
16.32.7
|
do anything which is in its opinion necessary or desirable to comply with any law or regulation in any jurisdiction.
|
16.33
|
Retirement of K-sure Agent
|
16.33.1
|
The K-sure Agent may, having given to each of the Lenders, not less than fifteen (15) days' notice of its intention to do so, retire from its appointment as K-sure Agent under this Agreement and the K-sure Policies, provided that no such retirement shall take effect unless:
|
|
(a)
|
there has been appointed by the Lenders as a successor agent:
|
|
(i)
|
a Lender nominated by all Lenders or, failing such nomination,
|
|
(ii)
|
a Related Company of the K-sure Agent nominated by the K-sure Agent which the Lenders hereby irrevocably and unconditionally agree to appoint or, failing such nomination,
|
|
(iii)
|
any reputable and experienced bank or financial institution nominated by the retiring K-sure Agent; and
|
|
(b)
|
K-sure has accepted such successor agent and (if applicable) has amended the K-sure Policies to reflect such change of agent.
|
16.33.2
|
Any corporation into which the K-sure Agent may be merged or converted or any corporation with which the K-sure Agent may be consolidated or any corporation resulting from any merger, conversion, amalgamation, consolidation or other reorganisation to which the K-sure Agent shall be a party shall, to the extent permitted by applicable law, be the successor K-sure Agent under this Agreement without the execution or filing of any document or any further act on the part of any of the parties to this Agreement save that notice of any such merger, conversion, amalgamation, consolidation or other reorganisation shall forthwith be given to each Security Party, the Lenders, the Swap Provider and the Borrowers.
|
16.33.3
|
Upon any such successor as aforesaid being appointed, the retiring K-sure Agent shall be discharged from any further obligation under this Agreement and the K-sure Policies (but shall continue to have the benefit of this clause 16 in respect of any action it has taken or refrained from taking prior to such discharge) and its successor and each of the other parties to this Agreement shall have the same rights and obligations among themselves as they would have had if such successor had been a party to this Agreement in place of the retiring K-sure Agent. The retiring K-sure Agent shall (at the expense of the Borrowers) provide its successor with copies of such of its records as its successor reasonably requires to carry out its functions under this Agreement and the K-sure Policies.
|
17
|
Notices and other matters
|
17.1
|
Notices
|
17.1.1
|
be in writing, delivered personally or by first-class prepaid letter (airmail if available) or telefax or by email and, in the case of notification of rates of interest by the Facility Agent or in the case of the delivery of any document by the Facility Agent, the Facility Agent may refer the relevant party or parties (by fax or letter) to a web site and to the location of the relevant information on such web site in discharge of such notification or delivery obligation;
|
17.1.2
|
be deemed to have been received, subject as otherwise provided in the relevant Security Document:
|
|
(a)
|
in the case of a letter, when delivered personally or seven (7) days after it has been put into the post;
|
|
(b)
|
in the case of a telefax or an email, when a complete and legible copy is received by the addressee (unless the date of despatch is not a business day in the country of the addressee or, if the time of despatch is after the close of business in the country of the addressee, it shall be deemed to have been received at the opening of business on the next such business day); and
|
|
(c)
|
where reference in such notice, request, demand or other communication is made to a web site, when the delivery of the letter or telefax or email referring to the addressee to such web site is deemed to have been received pursuant to the other provisions of this clause 17.1,
|
17.1.3
|
be sent:
|
|
(a)
|
to the Borrowers at:
|
|
(b)
|
to each Lender and each Arranger at its address or telefax number specified in Schedule 1 or in any relevant Substitution Certificate.
|
|
(c)
|
to the Swap Provider, to its address or fax number specified in paragraph (a) of Part 4 of the Schedule to the Master Swap Agreement.
|
|
(d)
|
to the Facility Agent and the Security Trustee at:
|
|
(e)
|
to the Account Bank at:
|
|
(f)
|
to the K-sure Agent at:
|
17.2
|
Notices through the Facility Agent
|
17.3
|
No implied waivers, remedies cumulative
|
17.4
|
English language
|
17.5
|
Counterparts
|
17.6
|
Conflicts
|
17.7
|
Further assurance
|
17.8
|
Borrowers' obligations
|
17.8.1
|
Joint and several
|
17.8.2
|
Borrowers as principal debtors
|
17.8.3
|
Indemnity
|
17.8.4
|
Liability unconditional
|
|
(a)
|
the death, bankruptcy, unsoundness of mind, insolvency, liquidation, dissolution, winding-up, administration, receivership, amalgamation, reconstruction or other incapacity of any person whatsoever (including, in the case of a partnership, a termination or change in the composition of the partnership) or any change of name or style or constitution of any Borrower or any other person liable; or
|
|
(b)
|
any of the Finance Parties granting any time, indulgence or concession to, or compounding with, discharging, releasing or varying the liability of, any Borrower or any other person liable or renewing, determining, varying or increasing any accommodation, facility or transaction or otherwise dealing with the same in any
|
|
|
manner whatsoever or concurring in, accepting, varying any compromise, arrangement or settlement or omitting to claim or enforce payment from any Borrower or any other person liable; or
|
|
(c)
|
anything done or omitted which but for this provision might operate to exonerate the Borrowers or any of them.
|
17.8.5
|
Recourse to other security
|
17.8.6
|
Waiver of Borrowers' rights
|
|
(a)
|
exercise any right of subrogation, reimbursement and indemnity against the other Borrowers or any of them or any other person liable; or
|
|
(b)
|
demand or accept repayment in whole or in part of any Indebtedness now or hereafter due to such Borrower from the other Borrowers or any of them or from any other person liable or demand or accept any guarantee, indemnity or other assurance against financial loss or any document or instrument created or evidencing an Encumbrance in respect of the same or dispose of the same; or
|
|
(c)
|
take any steps to enforce any right against the other Borrowers or any of them or any other person liable in respect of any such moneys; or
|
|
(d)
|
claim any set-off or counterclaim against the other Borrowers or any of them or any other person liable or claiming or proving in competition with the Finance Parties or any of them in the liquidation of the other Borrowers or any of them or any other person liable or have the benefit of, or share in, any payment from or composition with, the other Borrowers or any of them or any other person liable or any other Security Document now or hereafter held by the Finance Parties or any of them for any moneys owing under this Agreement or for the obligations or liabilities of any other person liable but so that, if so directed by the Facility Agent, it will prove for the whole or any part of its claim in the liquidation of the other Borrowers or any of them or other person liable on terms that the benefit of such proof and all money received by it in respect thereof shall be held on trust for the Lenders and applied in or towards discharge of any moneys owing under this Agreement in such manner as the Facility Agent shall deem appropriate.
|
17.9
|
K-sure override
|
17.9.1
|
each of the Facility Agent, the Security Trustee and the K-sure Agent shall be authorised to take all such actions as it may deem necessary to ensure that all requirements of K-sure under or in connection with such K-sure Policy are complied with; and
|
17.9.2
|
neither the Facility Agent, the Security Trustee nor the K-sure Agent shall be obliged to do anything if, in its opinion (upon consultation with K-sure), to do so could result in a breach of any requirements of K-sure under or in connection with a K-sure Policy or affect the validity of a K-sure Policy.
|
17.10
|
Prior consultation with K-sure
|
17.10.1
|
to consult with K-sure, prior to the exercise of certain decisions under the Security Documents (including the exercise of such voting rights in relation to any substantial amendment to any Security Document); and
|
17.10.2
|
to follow certain instructions given by K-sure.
|
17.11
|
Conflict
|
18
|
Governing law and jurisdiction
|
18.1
|
Law
|
18.2
|
Submission to jurisdiction
|
18.2.1
|
if any party has any claim against any other arising out of or in connection with this Agreement (including any non-contractual obligations connected with this Agreement) such claim shall (subject to clause 18.2.3) be referred to the High Court of Justice in England, to the jurisdiction of which each of the parties irrevocably submits;
|
18.2.2
|
the jurisdiction of the High Court of Justice in England over any such claim against any Finance Party shall be an exclusive jurisdiction and (subject to clause 18.2.3) no courts outside England shall have jurisdiction to hear or determine any such claim; and
|
18.2.3
|
nothing in this clause 18.2 shall limit the right of a Finance Party to refer any such claim against any of the Borrowers to any other court of competent jurisdiction outside England, to the jurisdiction of which the Borrowers hereby irrevocably agree to submit, nor shall the taking of proceedings by a Finance Party before the courts in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction whether concurrently or not.
|
18.2.4
|
The parties further agree that only the Courts of England and not those of any other State shall have jurisdiction to determine any claim which the Borrowers may have against any of the Finance Parties arising out of or in connection with this Agreement (including any non-contractual obligations connected with this Agreement).
|
18.3
|
Agent for service of process
|
18.4
|
Waiver of immunity
|
|
(a)
|
agrees not to claim immunity from proceedings brought by any Finance Party against it in relation to any of the Security Documents and to ensure that no such claim is made on its behalf;
|
|
(b)
|
consents generally to the giving of any relief or the issue of any process in connection with any request for relief; and
|
|
(c)
|
waives all rights of immunity in respect of itself or its assets.
|
18.5
|
Contracts (Rights of Third Parties) Act 1999
|
Name
|
Address and fax number
|
Commitment ($)
|
ABN AMRO
Bank N.V. |
Lending Office
Coolsingel 93
3012 AE Rotterdam
The Netherlands
Address for Notices
Coolsingel 93
3012 AE Rotterdam
The Netherlands
Fax: +31 10 401 53 23
Attn: Loans Administration
|
53,834,375
|
The Korea
Development Bank |
Lending Office
14, Euhaeng-ro
Youngdeungpo-gu
Seoul, 150-973
Korea
Address for Notices
14, Euhaeng-ro
Youngdeungpo-gu
Seoul, 150-973
Korea
Fax: +82 2 787 7494
Attn: Koo, Bo Bae
Fax: +82 2 787 5299
Attn: Min, Byung Cheol
|
53,834,375
|
TOTAL COMMITMENT
|
107,668,750
|
Name
|
Date of Shipbuilding
Contract |
Type of Ship
|
Scheduled
Delivery Date |
Contract
Price ($) |
Alicante
|
22 November 2010, as amended by Addendum No. 1 dated 3 December 2010, Addendum No. 2 dated 10 December 2010 and Addendum No. 3 dated 17 January 2011
|
115,200 Aframax crude oil tanker
|
November 2012
|
58,750,000
|
Bordeira
|
29 November 2010, as amended by Addendum No. 1 dated 3 December 2010 and Addendum No. 2 dated 10 December 2010
|
158,300 Suezmax crude oil tanker
|
January 2013
|
69,750,000
|
Mareta
|
22 November 2010, as amended by Addendum No. 1 dated 22 November 2010, Addendum No. 2 dated 22 November 2010 and Addendum No. 3 dated 17 January 2011
|
115,200 Aframax crude oil tanker
|
November 2012
|
58,750,000
|
(a)
|
no Default has occurred and is continuing;
|
(b)
|
the representations and warranties contained in clauses 7.1 and 7.2 of the Loan Agreement and clauses 4.1 and 4.2 of each Guarantee are true and correct at the date hereof as if made with respect to the facts and circumstances existing at such date;
|
(c)
|
each of the conditions set out in Schedule 4, Part 2 of the Loan Agreement have been satisfied or waived in respect of the making of the Advances requested or will be satisfied on or before the relevant Drawdown Date or such date as the Facility Agent has provided in a waiver;
|
(d)
|
the borrowing to be effected by the drawdown of such Advances will be within our corporate powers, has been validly authorised by appropriate corporate action and will not cause any limit on our borrowings (whether imposed by statute, regulation, agreement or otherwise) to be exceeded.
|
1
|
Constitutional documents
|
2
|
Corporate authorisations
|
|
(i)
|
being true and correct;
|
|
(ii)
|
being duly passed at meetings of the directors and, as the context may require, the shareholders of such Security Party duly convened and held;
|
|
(iii)
|
not having been amended, modified or revoked; and
|
|
(iv)
|
being in full force and effect,
|
3
|
Incumbency certificate
|
4
|
Security Parties' process agent
|
5
|
Certified Copies
|
6
|
Accounts
|
7
|
Legal opinions:
|
|
(a)
|
a legal opinion of Cozen O'Connor, legal counsel to the Facility Agent on matters of Marshall Islands law, such legal opinion addressed to the Facility Agent and K-sure;
|
|
(b)
|
a legal opinion of Yulchon LLC, legal counsel to the Facility Agent on matters of Korean law (including the K-sure Policies); and
|
|
(c)
|
a legal opinion of Norton Rose LLP, legal counsel to the Facility Agent on matters of Dutch law;
|
8
|
Fees and commitment commission
|
9
|
Borrower's consents and approvals
|
10
|
Other consents and approvals
|
11
|
Security Documents
|
12
|
K-sure Policies
|
13
|
"Know your customer"
|
|
such documentation and other evidence as is requested by the Facility Agent in order for the Facility Agent or the Arrangers or any Lender or the K-sure Agent or the Account Bank to carry out and be satisfied with the results of all necessary "know your client" or other checks which
|
1
|
|
Drawdown Notice
|
2
|
|
Conditions precedent
|
3
|
|
Updated corporate authorisations/certificates of incumbency
|
4
|
|
Ship conditions
|
|
(a)
|
Registration and Encumbrances
|
|
(b)
|
Classification
|
|
(c)
|
Insurance
|
|
(d)
|
Employment
|
5
|
|
Delivery
|
6
|
|
Security Documents
|
7
|
|
Valuation
|
8
|
|
Notices of assignment
|
9
|
|
Insurance opinion
|
10
|
DOC and SMC
|
11
|
ISPS Code Compliance
|
|
(a)
|
evidence satisfactory to the Facility Agent that the Ship relevant to such Advance is subject to a ship security plan which complies with the ISPS Code; and
|
|
(b)
|
a copy, certified (in a certificate dated no earlier than five (5) Banking Days prior to the Drawdown Date of such Advance) as a true and complete copy by an officer of the relevant Borrower of the ISSC for such Ship (or an application in respect thereof);
|
12
|
Bill of sale and delivery documents
|
13
|
Survey Report
|
14
|
Marshall Islands legal opinion
|
15
|
Maltese legal opinion
|
16
|
English legal opinion
|
17
|
Equity
|
18
|
Liquidity Account
|
19
|
Registration forms
|
|
such statutory forms duly signed by the Borrowers and the other Security Parties as may be required by the Facility Agent to perfect the security contemplated by the Security Documents;
|
20
|
Security Parties' process agent
|
21
|
K-sure Policies
|
21.1
|
evidence that the K-sure Premium for the relevant Ship has been paid by the Borrowers, and received by K-sure in full; and
|
21.2
|
confirmation from the K-sure Agent (as indicated by the K-sure Agent) that:
|
21.2.1
|
it has not been informed that K-sure intends to, and K-sure has not stipulated its intention to, repudiate or suspend the application of any K-sure Policy;
|
21.2.2
|
it is satisfied that all K-sure Policies are in full force and effect; and
|
21.2.3
|
it has received no instruction from K-sure that the relevant Advance should not be permitted or made available by the Lenders or, as the case may be, the Facility Agent;
|
21.3
|
evidence satisfactory to the Facility Agent that the K-sure Policies are in full force and effect;
|
22
|
K-sure documents
|
23
|
Further opinions
|
24
|
Further conditions precedent
|
1
|
The Existing Lender with full title guarantee assigns to the New Lender absolutely all rights and interests (present, future or contingent) which the Existing Lender has as a Lender under or by virtue of the Loan Agreement and all the other Security Documents in relation to [ ] per cent. ([ ]%) of the Contribution of the Existing Lender (or its predecessors in title) details of which are set out below:
|
Date of
Advaces
|
Amount of Advances
|
Existing
Lender's [Contribution] [Commitment] to
Advances |
Maturity Date
|
|
2
|
By virtue of this Substitution Certificate and clause 15 of the Loan Agreement, the Existing Lender is discharged [entirely from its Available Commitment which amounts to $[ ]] [from [ ] per cent. ([ ]%) of its Available Commitment, which percentage represents $[ ]].
|
3
|
The New Lender hereby requests the Facility Agent (on behalf of itself, the Borrowers, the Security Trustee, the Lenders, the Account Bank, the K-sure Agent, the Arrangers and the Swap Provider) to accept the executed copies of this Substitution Certificate as being delivered pursuant to and for the purposes of clause 15.3 of the Loan Agreement so as to take effect in accordance with the terms thereof on [date of transfer].
|
4
|
The New Lender:
|
|
(a)
|
confirms that it has received a copy of the Loan Agreement and the other Security Documents together with such other documents and information as it has required in connection with the transaction contemplated thereby;
|
|
(b)
|
confirms that it has not relied and will not hereafter rely on the Existing Lender, the Facility Agent, the Security Trustee, the Account Bank, the Arrangers, the K-sure Agent or the Swap Provider to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of the Loan Agreement, any of the other Security Documents or any such documents or information;
|
|
(c)
|
agrees that it has not relied and will not rely on the Existing Lender, the Facility Agent, the Security Trustee, the Account Bank, the Arrangers, the K-sure Agent, the Swap Provider or the Lenders to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of the Borrowers or any other Security Party (save as otherwise expressly provided therein);
|
|
(d)
|
warrants that it has power and authority to become a party to the Loan Agreement and has taken all necessary action to authorise execution of this Substitution Certificate and to obtain all necessary approvals and consents to the assumption of its obligations under the Loan Agreement and the other Security Documents;
|
|
(e)
|
acknowledges and accepts the provisions of paragraph 4(c) above; and
|
|
(f)
|
if not already a Lender, appoints the Facility Agent and the Security Trustee to act, respectively, as its agent and security trustee as provided in the Loan Agreement and the other Security Documents and the K-sure Agent to act as its K-sure agent as provided in the Loan Agreement and any of the K-sure Policies and agrees to be bound by the terms of the Loan Agreement.
|
5
|
The Existing Lender:
|
|
(a)
|
warrants to the New Lender that it has full power to enter into this Substitution Certificate and has taken all corporate action necessary to authorise it to do so;
|
|
(i)
|
warrants to the New Lender that this Substitution Certificate is binding on the Existing Lender under the laws of England, the country in which the Existing Lender is incorporated and the country in which its lending office is located; and
|
|
(ii)
|
agrees that it will, at its own expense, execute any documents which the New Lender reasonably requests for perfecting in any relevant jurisdiction the New Lender's title under this Substitution Certificate or for a similar purpose.
|
6
|
The New Lender hereby undertakes with the Existing Lender and each of the other parties to the Loan Agreement and the other Security Documents that it will perform in accordance with its terms all those obligations which by the terms of the Loan Agreement and the other Security Documents will be assumed by it after delivery of the executed copies of this
|
7
|
By execution of this Substitution Certificate on their behalf by the Facility Agent and in reliance upon the representations and warranties of the New Lender, the Borrowers and each of the Finance Parties accept the New Lender as a party to the Loan Agreement and the Security Documents and the K-sure Policies with respect to all those rights and/or obligations which by the terms of the Loan Agreement and the Security Documents and the K-sure Policies will be assumed by the New Lender (including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification of, any Finance Party as provided by the Loan Agreement) after delivery of the executed copies of this Substitution Certificate to the Facility Agent and satisfaction of the conditions (if any) subject to which this Substitution Certificate is expressed to take effect.
|
8
|
None of the Existing Lender or the other Finance Parties:
|
|
(a)
|
makes any representation or warranty nor assumes any responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of the Loan Agreement or any of the Security Documents or any of the K-sure Policies or any document relating thereto; or
|
|
(b)
|
assumes any responsibility for the financial condition of the Borrowers or any of them or any other Security Party or K-sure or any party to any such other document or for the performance and observance by the Borrowers or any of them or any other Security Party or K-sure or any party to any such other document (save as otherwise expressly provided therein) and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded (except as aforesaid).
|
9
|
The Existing Lender and the New Lender each undertake that they will on demand fully indemnify the Facility Agent in respect of any claim, proceeding, liability or expense which relates to or results from this Substitution Certificate or any matter concerned with or arising out of it unless caused by the Facility Agent's gross negligence or wilful misconduct, as the case may be.
|
10
|
The agreements and undertakings of the New Lender in this Substitution Certificate are given to and for the benefit of and made with each of the other parties to the Loan Agreement and the Security Documents.
|
11
|
This Substitution Certificate and any non-contractual obligations in connection with it are governed by, and shall be construed in accordance with, English law.
|
Existing Lender | New Lender | |
By: | By: | |
Dated: | Dated: | |
Agent | ||
Agreed for and on behalf of itself as Facility Agent, the Security Trustee | ||
the Borrowers, the Arrangers, the Account Bank, the K-sure Agent, the Swap Provider and the Lenders |
1
|
The Security Trustee hereby acknowledges and declares that, from the date of this Deed, it holds and shall hold the Trust Property on trust for the Lenders, the Facility Agent, the K-sure Agent and the Swap Provider on the terms and basis set out in the Agreement.
|
2
|
The declaration and acknowledgement contained in paragraph 1 above shall be irrevocable.
|
Ship-owning Companies with Vessels in Operation
|
Country of Organization
|
|
1.
|
Malvina Shipping Company Limited
|
Malta
|
2.
|
Samsara Shipping Company Limited
|
Malta
|
3.
|
Borsari Shipping Company Limited
|
Malta
|
4.
|
Fabiana Navigation Company Limited
|
Malta
|
5.
|
Karmen Shipping Company Limited
|
Malta
|
6.
|
Thelma Shipping Company Limited
|
Malta
|
7.
|
Celine Shipping Company Limited
|
Malta
|
8.
|
Tempo Marine Co.
|
Marshall Islands
|
9.
|
Star Record Owning Company Limited
|
Marshall Islands
|
10.
|
Argo Owning Company Limited
|
Marshall Islands
|
11.
|
Rea Owning Company Limited
|
Marshall Islands
|
12.
|
Dione Owning Company Limited
|
Marshall Islands
|
13.
|
Phoebe Owning Company Limited
|
Marshall Islands
|
14.
|
Uranus Owning Company Limited
|
Marshall Islands
|
15.
|
Selene Owning Company Limited
|
Marshall Islands
|
16.
|
Tethys Owning Company Limited
|
Marshall Islands
|
17.
|
Ioli Owning Company Limited
|
Marshall Islands
|
18.
|
Iason Owning Company Limited
|
Marshall Islands
|
19.
|
Team up Owning Company Limited
|
Marshall Islands
|
20.
|
Iokasti Owning Company Limited
|
Marshall Islands
|
21.
|
Boone Star Owners Inc.
|
Marshall Islands
|
22.
|
Norwalk Star Owners Inc.
|
Marshall Islands
|
23.
|
Dalian Star Owners Inc.
|
Marshall Islands
|
24.
|
Aegean Traders Inc.
|
Marshall Islands
|
25.
|
Cretan Traders Inc.
|
Marshall Islands
|
26.
|
Roscoe Marine Ltd.
|
Marshall Islands
|
27.
|
Ialysos Owning Company Limited
|
Marshall Islands
|
28.
|
Pergamos Owning Company Limited
|
Marshall Islands
|
29.
|
Amathus Owning Company Limited
|
Marshall Islands
|
30.
|
Olympian Zeus Owners Inc.
|
Marshall Islands
|
31.
|
Olympian Apollo Owners Inc.
|
Marshall Islands
|
32.
|
Olympian Hera Owners Inc.
|
Marshall Islands
|
Ship-owning Companies with Vessels in Operation
|
Country of Organization
|
|
33.
|
Olympian Poseidon Owners Inc.
|
Marshall Islands
|
34.
|
Olympian Demeter Owners Inc.
|
Marshall Islands
|
35.
|
Oceanenergy Owners Limited
|
Marshall Islands
|
36.
|
Oceantrade Owners Limited
|
Marshall Islands
|
37.
|
Oceanwave Owners Limited
|
Marshall Islands
|
38.
|
Oceanrunner Owners Limited
|
Marshall Islands
|
39.
|
Oceanfire Owners Inc.
|
Marshall Islands
|
40.
|
Olympian Athena Owners Inc.
|
Marshall Islands
|
41.
|
Olympian Dionysus Owners Inc.
|
Marshall Islands
|
42.
|
Olympian Artemis Owners Inc.
|
Marshall Islands
|
43.
|
Olympian Ares Owners Inc.
|
Marshall Islands
|
44.
|
Olympian Aphrodite Owners Inc.
|
Marshall Islands
|
45.
|
Oceanview Owners Limited
|
Liberia
|
Ship-buying Companies of Vessels under Construction
|
Country of Organization
|
|
46.
|
Symi Owners Inc.
|
Marshall Islands
|
47.
|
Kalymnos Owners Inc.
|
Marshall Islands
|
48.
|
Echo Owning Company Limited
|
Marshall Islands
|
49.
|
Caerus Owning Company Limited
|
Marshall Islands
|
50.
|
Litae Owning Company Limited
|
Marshall Islands
|
51.
|
Tyche Owning Company Limited
|
Marshall Islands
|
52.
|
Oceansurf Owners Limited
|
Liberia
|
53.
|
Oceancentury Owners Limited
|
Liberia
|
54.
|
Amazon Owning Company Limited
|
Marshall Islands
|
55.
|
Pacifai Owning Company Limited
|
Marshall Islands
|
Ship-owning Companies with Vessels Lost, Sold or Canceled
|
Country of Organization
|
|
56.
|
Monteagle Shipping SA
|
Marshall Islands
|
57.
|
IktinosOwningCompanyLimited
|
Marshall Islands
|
58.
|
Kallikrates Owning Company Limited
|
Marshall Islands
|
59.
|
Faedon Shareholders Limited
|
Marshall Islands
|
60.
|
Lansat Shipping Company Limited
|
Malta
|
61.
|
Thassos Traders Inc
|
Marshall Islands
|
62.
|
Milos Traders Inc.
|
Marshall Islands
|
63.
|
Sifnos Traders Inc.
|
Marshall Islands
|
Ship-owning Companies with Vessels in Operation
|
Country of Organization
|
|
64.
|
Tinos Traders Inc .
|
Marshall Islands
|
65.
|
Annapolis Shipping Company .
|
Malta
|
66.
|
Tolan Shipping Company Limited.
|
Malta
|
67.
|
Felicia Navigation Company Limited.
|
Malta
|
68.
|
Zatac Shipping Company Limited
|
Malta
|
69.
|
Atlas Owning Company Limited
|
Marshall Islands
|
70.
|
Maternal Owning Company Limited)
|
Marshall Islands
|
71.
|
Royerton Shipping Company Limited
|
Malta
|
72.
|
Lancat Shipping Company Limited
|
Malta
|
73.
|
Paternal Owning Company Limited
|
Marshall Islands
|
74.
|
Fago Shipping Company Limited
|
Malta
|
75.
|
Hydrogen Shipping Company Limited
|
Malta
|
76.
|
Madras Shipping Company Limited
|
Malta
|
77.
|
Seaventure Shipping Limited
|
Marshall Islands
|
78.
|
Classical Owning Company Limited
|
Marshall Islands
|
79.
|
Oxygen Shipping Company Limited
|
Malta
|
80.
|
Human Owning Company Limited
|
Marshall Islands
|
81.
|
Helium Shipping Company Limited
|
Malta
|
82.
|
Blueberry Shipping Company Limited
|
Malta
|
83.
|
Platan Shipping Company Limited
|
Malta
|
84.
|
Silicon Shipping Company Limited
|
Malta
|
85.
|
Callicles Challenge Inc.
|
Marshall Islands
|
86.
|
Antiphon Challenge Inc.
|
Marshall Islands
|
87.
|
Cratylus Challenge Inc.
|
Marshall Islands
|
88.
|
Protagoras Challenge Inc.
|
Marshall Islands
|
89.
|
Lycophron Challenge Inc.
|
Marshall Islands
|
90.
|
Thrasymachus Challenge Inc.
|
Marshall Islands
|
91.
|
Hippias Challenge Inc.
|
Marshall Islands
|
92.
|
Prodicus Challenge Inc.
|
Marshall Islands
|
93.
|
Gorgias Challenge Inc.
|
Marshall Islands
|
94.
|
Kerkyra Traders Inc.
|
Marshall Islands
|
95.
|
Arleta Navigation Company Limited
|
Malta
|
96.
|
Iguana Shipping Company Limited
|
Malta
|
Ship-owning Companies with Vessels in Operation
|
Country of Organization
|
|
97.
|
Lotis Traders Inc.
|
Marshall Islands
|
98.
|
Mandarin Shareholdings Limited
|
Marshall Islands
|
99.
|
Mensa Shareholdings Limited
|
Marshall Islands
|
100.
|
Belulu Shareholders Limited
|
Marshall Islands
|
101.
|
Oceanship Owners Limited
|
Marshall Islands
|
102.
|
Oceanwealth Owners Limited
|
Marshall Islands
|
103.
|
Oceanventure Owners Limited
|
Marshall Islands
|
104.
|
Oceanresources Owners Limited
|
Marshall Islands
|
105.
|
Oceanstrength Owners Limited
|
Marshall Islands
|
106.
|
Oceanprime Owners Limited
|
Marshall Islands
|
107.
|
Oceanclarity Owners Limited
|
Marshall Islands
|
108.
|
Oceanfighter Owners Inc.
|
Marshall Islands
|
109.
|
Ocean Faith Owners Inc.
|
Marshall Islands
|
110.
|
Ocean Blue Spirit Owners Inc.
|
Marshall Islands
|
111.
|
Kifissia Star Owners Inc.
|
Marshall Islands
|
112.
|
Selma Shipping Company Limited
|
Malta
|
113.
|
Farat Shipping Company Limited
|
Malta
|
114.
|
Onil Shipping Company Limited
|
Malta
|
115.
|
Gaia Owning Company Limited
|
Marshall Islands
|
116.
|
Kronos Owning Company Limited
|
Marshall Islands
|
117.
|
Trojan Maritime Co.
|
Marshall Islands
|
118.
|
Orpheus Owning Company Limited
|
Marshall Islands
|
119.
|
NT LLC Investors Ltd.
|
Marshall Islands
|
120.
|
Ionian Traders Inc.
|
Marshall Islands
|
121.
|
Oceanprime Owners Limited
|
Marshall Islands
|
122.
|
Olympian Hephaestus Owners Inc.
|
Marshall Islands
|
123.
|
Olympian Hermes Owners Inc.
|
Marshall Islands
|
Subsidiaries of Ocean Rig UDW Inc.
|
Country of Organization
|
|
124.
|
Ocean Rig UDW Inc (formerly Primelead Shareholders Inc)
|
Marshall Islands
|
125.
|
Ocean Rig AS
|
Norway
|
126.
|
Ocean Rig UK Ltd
|
United Kingdom
|
127.
|
Ocean Rig Ltd
|
United Kingdom
|
Ship-owning Companies with Vessels in Operation
|
Country of Organization
|
|
128.
|
Ocean Rig Ghana Ltd
|
Ghana
|
129.
|
Ocean Rig Canada Inc.
|
Canada
|
130.
|
Ocean Rig North Sea AS
|
Norway
|
131.
|
Ocean Rig 1 Shareholders Inc.
|
Marshall Islands
|
132.
|
Ocean Rig 2 Shareholders Inc.
|
Marshall Islands
|
133.
|
Drill Rigs Holdings Inc.
|
Marshall Islands
|
134.
|
Drillships Investment Inc.
|
Marshall Islands
|
135.
|
Drillships Holdings Inc.
|
Marshall Islands
|
136.
|
Kithira Shareholders Inc.
|
Marshall Islands
|
137.
|
Skopelos Shareholders Inc.
|
Marshall Islands
|
138.
|
Drillship Hydra Shareholders Inc.
|
Marshall Islands
|
139.
|
Drillship Paros Shareholders Inc.
|
Marshall Islands
|
140.
|
Ocean Rig Operations Inc.
|
Marshall Islands
|
141.
|
Primelead Limited
|
Cyprus
|
142.
|
Ocean Rig Black Sea Operations BV
|
The Netherlands
|
143.
|
Ocean Rig Drilling Operations Cooperatief U.A
|
The Netherlands
|
144.
|
Ocean Rig Black Sea Cooperatief U.A
|
The Netherlands
|
145.
|
Ocean Rig Deep Water Drilling Ltd.
|
Nigeria
|
146.
|
Ocean Rig Drilling Operations B.V.
|
Netherlands
|
147.
|
Ocean Rig 1 Inc.
|
Marshall Islands
|
148.
|
Ocean Rig 2 Inc.
|
Marshall Islands
|
149.
|
Drillship Hydra Owners Inc
|
Marshall Islands
|
150.
|
Drillship Paros Owners Inc.
|
Marshall Islands
|
151.
|
Drillship Kithira Owners Inc.
|
Marshall Islands
|
152.
|
Drillship Skopelos Owners Inc.
|
Marshall Islands
|
153.
|
Algarve Finance Ltd.
|
Marshall Islands
|
154.
|
Alley Finance Ltd.
|
Marshall Islands
|
155.
|
Drillship Skiathos Shareholders Inc.
|
Marshall Islands
|
156.
|
Drillship Skyros Shareholders Inc.
|
Marshall Islands
|
157.
|
Drillship Kythnos Shareholders Inc.
|
Marshall Islands
|
158.
|
Drillship Skiathos Owners Inc.
|
Marshall Islands
|
159.
|
Drillship Skyros Owners Inc.
|
Marshall Islands
|
160.
|
Drillship Kythnos Owners Inc.
|
Marshall Islands
|
Ship-owning Companies with Vessels in Operation
|
Country of Organization
|
|
161.
|
Ocean Rig 1 Greenland Operations Inc.
|
Marshall Islands
|
162.
|
Ocean Rig Corcovado Greenland Operations Inc.
|
Marshall Islands
|
163.
|
Ocean Rig Olympia Ghana Operations Limited
|
Ghana
|
164.
|
Ocean Rig Poseidon Operations Inc. (formerly Tanzania Operations Inc.)
|
Marshall Islands
|
165.
|
Ocean Rig Do Brasil Serviços De Petroleo Ltda.
|
Brazil
|
166.
|
Ocean Rig Falkland Operations Inc.
|
Marshall Islands
|
167.
|
Drill Rigs Operations Inc.
|
Marshall Islands
|
168.
|
Ocean Rig Olympia Brasil Operations Cooperatief UA
|
The Netherlands
|
169.
|
Ocean Rig Olympia Brasil Operations B.V.
|
The Netherlands
|
170.
|
Drillships Holdings Operations Inc.
|
Marshall Islands
|
171.
|
Drillships Investment Operations Inc.
|
Marshall Islands
|
172.
|
Ocean Rig Rio de Janeiro Serviços de Petroleo Ltda.
|
Brazil
|
173.
|
Ocean Rig Drilling Do Brasil Serviços de Petroleo Ltda.
|
Brazil
|
174.
|
Ocean Rig Offshore Management Ltd.
|
Jersey
|
175.
|
Ocean Rig Brasil Cooperatief UA
|
The Netherlands
|
176.
|
Ocean Rig Brasil B.V.
|
The Netherlands
|
177.
|
Ocean Rig Angola Operations Inc.
|
Marshall Islands
|
178.
|
Ocean Rig EG Operations Inc.
|
Marshall Islands
|
179.
|
Ocean Rig Norway Operations Inc.
|
Marshall Islands
|
180.
|
Ocean Rig UDW LLC
|
Delaware
|
181.
|
Ocean Rig Global Chartering Inc.
|
Marshall Islands
|
182.
|
Ocean Rig Namibia Operations Inc.
|
Marshall Islands
|
183.
|
Drillships Ocean Ventures Inc.
|
Marshall Islands
|
184.
|
Drillships Ocean Ventures Operations Inc.
|
Marshall Islands
|
185.
|
Ocean Rig Block 33 Brasil Cooperatief U.A.
|
Brazil
|
186.
|
Ocean Rig Block 33 Brasil BV
|
Brazil
|
187.
|
Ocean Rig Cuanza Operations Inc.
|
Marshall Islands
|
188.
|
Olympia Rig Angola Holding, SA
|
Angola
|
189.
|
Olympia Rig Angola, Limitada
|
Angola
|
190.
|
Ocean Rig Liberia Operations Inc.
|
Marshall Islands
|
191.
|
Ocean Rig West Africa Operations Inc.
|
Marshall Islands
|
192.
|
Drillship Alonissos Owners Inc.
|
Marshall Islands
|
193.
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
Ship-owning Companies with Vessels in Operation
|
Country of Organization
|
|
194.
|
Eastern Med Consultants Inc.
|
Marshall Islands
|
195.
|
Ocean Rig Management Inc.
|
Marshall Islands
|
196.
|
Ocean Rig Cunene Operations Inc.
|
Marshall Islands
|
197.
|
Ocean Rig Cubango Operations Inc.
|
Marshall Islands
|
198.
|
Ocean Rig Gabon Operations Inc.
|
Marshall Islands
|
199.
|
Ocean Rig Ireland Operations Inc.
|
Marshall Islands
|
Other Companies
|
Country of Organization
|
|
200.
|
Wealth Management Inc.
|
Marshall Islands
|
201.
|
Pounta Traders Inc.
|
Marshall Islands
|
202.
|
Sunlight Shipholding One Inc.
|
Marshall Islands
|
203.
|
Ialysos Shareholders Limited
|
Marshall Islands
|
204.
|
DryShips Partners LP
|
Marshall Islands
|
205.
|
DRYS GP LLC
|
Marshall Islands
|
206.O
|
OceanFreight Inc.
|
Marshall Islands
|
EZ=XAO[6%=?OM+@% MK:PS,H%Q(0^?+56WDCL**`/D[]H']A+X)?\`!13_`(.%/VB?VEE\#?$@ABGB?0[E;>.!BQ^_)$+<*QR6&X!N@)_<;PM^PG\$/ M"'[<7B;_`(*!:2-4_P"$]\6>#K?PUJADOLVGV*%XW39%CY7S$N6SZUO_`!V_ M9/\`@=^T7XG\$^.?B?X-@N]<^'?B:#7?"&L(`MSI]U&P)"OC.QP-KIT8>X!` M!\&?LX7>A>%O^#GCX^6'QLD2+Q%X@^#.@R?">746`$NEH5%Y';%NI\Y"2%Y_ M=R^]5?\`@O\`RZ3XB_;"_8>\#?"^XA?XKK^T)I]_I<=J0;FWT6.2(WTD@7YA M!A5+9X(1_0U]<_MX_P#!+S]F3_@H*="\0_%>WUK0_%_A5B?"_CWP=JC:?K&E M@G)2.=`Q[(G=#'C/O1_P`&T/BGP+\3(_V@/CEX^\32 M6WQ^\$ZXO?C#X%O+,6;^'I8GD6"&*`G D -3_P"$[\0>"+?PK?E[W-I]@AF69-L6.'W*,MGI63H?_!.?]F'P MM^W-J'_!0OPKX5N=+^(>K^&3HNL3:=>O#::A&7#>?/`F%EFPJKO;/"KW`-`' MR#\<_P#E:G^"7_9M^L_^CKNH?^"QT^B>&/\`@KM^P=X_^. (;6Z MFU`?Z';ZY+88L&E+?*I\[R2I;IL8]C7VGXF_83^"/BS]N/PW_P`%`]4&J?\` M">^%?!]QX;TLQWN+3[%,TC/NBQ\SYD;#9]*UOVO_`-C?]GS]NKX*WWP$_:3\ M"Q:[H%Y*D\:^8T4]G<($8)"#+-JYNXC;B`=2X`<_+SM#]LU\L_\`!4?X;7WC/P7_ M`,$O?A-^T5H(U*ZU'Q9H^F>---U5=_VB5M)L([J.4'J2V\'WS7U9\&_^#?G] MD_P!\4-`^)?Q<^+_`,4OBXG@Z\2Y\%^'_B=XO?4=-T:5,>6\<&U5=EQQOW`< M<9&:^A_VH_V$?@?^UU\0_A7\3?BLNJ#4O@]XM_X2+PB-.O?)C%YA!^]7!\Q/ MW:_+Q0!^&'_!8K]GO]JG_@C'^RY\6_V1?A[#J'C#]ECXV+"?" [^S,W.V)U@*+G`;(_B'/[]_LK_P#)L7PY_P"Q#TC_`-(HJO?';X$_"C]I M?X2:Y\#OC=X,L_$'ACQ%8O::KIE['N21&'4=U8'!5A@J0"#D5L^!O".E?#_P M5H_@/0O,^PZ)I=O86?FON?RH8UC3<>YVJ,F@#\V/^"@DFI0_\')?[$\VC6T< MUXGP]\>&TAF?:CR#1=1VJQ[`G`)[5Q7_``11\=1?&/\`X*X?M+?'#]L3;X-_ M:4>VC\-K\-/+\JVM_#4+6[)<6SMS>;G@B)D'10K#ACC]"OBA^PG\$?BW^V7\ M-/VZ/%0U3_A-_A3IFIV'A :WG\V+'SG9,^#D8.#VJC\6/^"=/[ M,/QB_;`\!_MS^)?"ES;?$7X?0S0:5K.EWKVQNX75E$5T$QYZ)N8JK<#<0<@X MH`^.O^#?F[\-:%^T;^VCX!\>R10_%5/VB=3OM=@OF`O9M'D.=/D&[YFA"E\$ M<#>/[PS5^-LVC>)_^#I[X,'X*2PS:GX?^"&M?\+?ET_!\NS>.Y%E% C^<\ M!`;G!3MBOHO]L_\`X(T_LS?M@?&)/VD[#QCXU^&7Q,^PK9W7COX9>(&TR^OK M=0%6.X(!68!5"@L-P``S@8KL?V#O^"8G[,G_``3WMMW[7B>$3H%UXF\1:-%?Z7N+I!=VVO+:R[&/WHR\)93Z$`\ MBOKGXT_\$!/V;?C;X]\3^(]9_:1^-VF>'O&>L7&I>)_`.D?$2:+1KZ:>0R2@ MPE2RHS$_*K``<#%>N_''_@E1^R!\ #;K0/A?9"S%EI7AN[-M) M#]FN!<(1)@DEI1N9CDL6))R:`/"?V8O@5_P7/M--\`:QXK_;B^%]WX/CM=+F MU#2+?X=!+B73PD9>!9=_RN8LKN]>:*O^$?\`@WD_90\(:SIFJ6O[0WQTN8=, MN898].N_BC=M;RK&P(B=!C*$#:5].**`/OBBBB@`HHHH`****`"BBB@`HHHH 7`****`"BBB@`HHHH`****`"BBB@#_]D_ ` end
Intangible Assets and Liabilities (Tables)
|
12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Dec. 31, 2012
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Intangible Assets and Liabilities [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of Finite-Lived Intangible Assets, Future Amortization Expense [Table Text Block] |
|
Commitment and contingencies - Purchase Obligations (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
Dec. 31, 2012
|
---|---|
First Year | $ 1,545,571 |
Vessels shipbuilding contract (Member)
|
|
First Year | 365,795 |
Second Year | 146,120 |
Third Year | 0 |
Total | 511,915 |
Drillship Shipbuilding contract (Member)
|
|
First Year | 1,179,776 |
Second Year | 0 |
Third Year | 387,100 |
Total | 1,566,876 |
Total Obligations (Member)
|
|
First Year | 1,545,571 |
Second Year | 146,120 |
Third Year | 387,100 |
Total | $ 2,078,791 |
Significant Accounting Policies - Intangible assets (Table) (Details)
|
12 Months Ended |
---|---|
Dec. 31, 2012
|
|
Trade Names [Member]
|
|
Estimated useful life (in years) | 10 years |
Software [Member]
|
|
Estimated useful life (in years) | 10 years |
Fair value of above market acquired time charters/ drilling contracts
|
|
Amortization period | Over remaining contract term |
Fair value of below market acquired time charters/ drilling contracts
|
|
Amortization period | Over remaining contract term |
Interest and Finance Costs (Tables)
|
12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Dec. 31, 2012
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Interest And Finance Costs [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Interest And Finance Costs |
|
Vessels, Drilling Rigs, Drillships, Machinery and Equipment - Additional information (Details) (USD $)
|
12 Months Ended | 9 Months Ended | 12 Months Ended | 12 Months Ended | 12 Months Ended | 3 Months Ended | |||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
Dec. 31, 2011
Vessel Primera
|
Dec. 31, 2010
Vessel Primera
|
Dec. 31, 2011
Vessels Conquistador, Brisbane, Samsara and Toro
|
Sep. 21, 2011
Vessel La Jolla
|
Dec. 31, 2011
Vessel La Jolla
|
Jun. 30, 2011
Vessel La Jolla
|
Dec. 31, 2011
OceanFreight
|
Dec. 31, 2010
Vessel Amalfi
|
Dec. 31, 2010
Vessels Delray, Iguana and Xanadu
|
Dec. 31, 2011
Vessels Avoca, Padre and Positano
|
Mar. 31, 2012
Vessels Avoca, Padre and Positano
|
Dec. 31, 2012
Vessels Avoca And Padre
|
Dec. 31, 2012
Positano
|
Dec. 31, 2011
Conquistador [Member]
|
Dec. 31, 2011
Brisbane [Member]
|
Dec. 31, 2011
Samsara [Member]
|
Dec. 31, 2011
Toro [Member]
|
Dec. 31, 2012
Avoca [Member]
|
Dec. 31, 2012
Padre [Member]
|
Mar. 17, 2011
Vessels Fair Value [Member]
|
|
Gain/(Loss) on sale of assets | $ (1,179,000) | $ (3,357,000) | $ 9,435,000 | $ (622,000) | $ (1,449,000) | $ (527,000) | $ 10,893,000 | $ (1,511,000) | $ 492,000 | ||||||||||||||
Vessel impairment charge | 0 | 144,688,000 | 3,588,000 | 3,588,000 | 106,187,000 | 5,917,000 | 32,584,000 | ||||||||||||||||
Vessel Sale Price | 26,500,000 | 20,200,000 | 118,000,000 | ||||||||||||||||||||
Vessels | 187,000,000 | ||||||||||||||||||||||
Price per Vessel/ Drillship | 43,448,000 | ||||||||||||||||||||||
Gain/ (Loss) on contract cancellation | 0 | 6,202,000 | 0 | ||||||||||||||||||||
Date of disposal of vessel | Apr. 04, 2011 | Sep. 21, 2011 | May 04, 2012 | Jul. 25, 2011 | Sep. 06, 2011 | Aug. 24, 2011 | Oct. 14, 2011 | Feb. 22, 2012 | Feb. 24, 2012 | ||||||||||||||
Proceeds from sale of vessels,net of costs | 116,834,000 | 119,059,000 | 73,317,000 | 73,317,000 | |||||||||||||||||||
Revenues | $ 1,210,139,000 | $ 1,077,662,000 | $ 859,745,000 | $ 25,064,000 |
Income Taxes - Entitys Total Income Tax Expense for the Period and Statutory Tax Rate (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
|
Income Taxes [Abstract] | |||
Current Tax expense | $ 43,957 | $ 27,637 | $ 20,227 |
Deferred Tax expense / (benefit) | 0 | (209) | 209 |
Income tax | $ 43,957 | $ 27,428 | $ 20,436 |
Effective tax rate | (50.00%) | 22.00% | 13.00% |
Other Non Current Assets - Additional information (Details) (USD $)
In Thousands, unless otherwise specified |
9 Months Ended | 12 Months Ended | |||||||
---|---|---|---|---|---|---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
Sep. 20, 2012
Samsung
Integer
|
Dec. 31, 2011
Samsung
Integer
|
Dec. 31, 2012
Samsung
|
Nov. 22, 2010
Samsung
|
Dec. 31, 2012
Saga and Vilamoura
|
Dec. 31, 2011
Ocean Rig Mykonos
|
|
Security deposits for derivatives | $ 550 | $ 33,100 | $ 550 | $ 33,100 | |||||
Option for construction of drillships | 0 | 24,756 | |||||||
Non-refundable slot reservation fee per drillship | 24,756 | ||||||||
Option Final Exercise Date | 31-Mar-13 | ||||||||
Advances for vessels and drillships under construction | $ 1,201,807 | $ 1,027,889 | $ 2,072,699 | $ 24,756 | $ 74,628 | ||||
Number Of Options Exercised | 1 | 3 |
Pension liability - Components of changes in Plan Assets and Benefit Obligations recognized in Other Comprehensive Income/ (Loss) (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
|
Net actuarial loss (gain) | $ 1,467 | $ 2,104 | $ 3,046 |
Prior service cost (credit) | 0 | 0 | 0 |
Amortization of actuarial loss | 184 | 116 | 47 |
Total defined benefit plan adjustments net of tax $0 | 637 | 942 | (425) |
Recognized In Other Comprehensive Income/ (Loss)
|
|||
Net actuarial loss (gain) | (581) | 234 | 1,101 |
Prior service cost (credit) | 276 | 1,133 | (1,020) |
Amortization of actuarial loss | 942 | (425) | (506) |
Total defined benefit plan adjustments net of tax $0 | $ 637 | $ 942 | $ (425) |
Commitment and contingencies (Tables)
|
12 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Dec. 31, 2012
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Commitments and Contingencies [Abstract] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Purchase obligations |
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Significant Accounting policies (Tables)
|
12 Months Ended | ||||||||||
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Dec. 31, 2012
|
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Significant Accounting Policies [Abstract] | |||||||||||
Finite lived acquired intangible assets |
|
Long Term Debt (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
Dec. 31, 2012
|
Dec. 31, 2011
|
---|---|---|
5% Convertible Senior Unsecured Notes | $ 700,000 | $ 700,000 |
Loan Facilities - Drybulk Segment | 716,354 | 841,453 |
Loan Facilities - Tanker Segment | 224,985 | 130,048 |
Loan Facilities - Drilling Segment | 1,607,500 | 2,279,167 |
Less: Deferred financing costs | (162,124) | (192,183) |
Less: Dryships participation in Ocean Rig Senior Notes | (18,000) | |
Add: Valuation of Dryships participation in Ocean Rigs Senior Notes | 1,350 | |
Total Debt | 4,386,715 | 4,241,835 |
Less current portion | (1,102,085) | (429,149) |
Long-term portion | 3,284,630 | 3,812,686 |
9.5% Ocean Rig Senior Unsecured Notes
|
||
Senior Notes | 500,000 | 500,000 |
6.5% Drill Rigs Senior Secured Notes
|
||
Senior Notes | $ 800,000 | $ 0 |
Interest and finance cost (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
|
Interest and Finance Costs [Abstract] | |||
Interest incurred on long-term debt | $ 205,070 | $ 156,088 | $ 99,044 |
Amortization and write off of financing fees | 17,565 | 21,952 | 8,249 |
Amortization of convertible notes discount | 38,855 | 34,144 | 26,516 |
Amortization of share lending agreement notes issuance costs | 2,983 | 2,974 | 2,617 |
Other | 4,622 | 7,083 | 8,850 |
Capitalized interest | (58,967) | (76,068) | (78,451) |
Total | $ 210,128 | $ 146,173 | $ 66,825 |
Income Taxes - Additional Information (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
|
Deferred Tax Assets Net | 0 | 0 | |
Net operating losses, gross | 32,961 | 25,593 | |
Income Tax Average Examination Period | 3 to 6 years | ||
Brazil, Angola, Equatorial Guinea, Ivory Coast and Ghana
|
|||
Withholding Tax As A Percentage Of Current Tax Expense | 97.00% | ||
Ghana Tanzania And Turkey [Member]
|
|||
Withholding Tax As A Percentage Of Current Tax Expense | 95.00% | ||
Ghana And Turkey [Member]
|
|||
Withholding Tax As A Percentage Of Current Tax Expense | 95.00% | ||
Marshall Islands [Member]
|
|||
Percentage Of Marshall Islands And Malta Subsidiaries Stock Treated As Owned By Indivinduals Resident In Marshall Islands | 100.00% | ||
Current tax rate | 0.00% | 0.00% | 0.00% |
Acquisition of Ocean Freight - Above market acquired time charter (Table) (Details) (Ocean Freight Above Market Acquired Time Charter [Member], USD $)
In Thousands, unless otherwise specified |
12 Months Ended |
---|---|
Dec. 31, 2011
|
|
Ocean Freight Above Market Acquired Time Charter [Member]
|
|
Amount Acquired | $ 47,320 |
Amortization as of December 31, 2011 | 7,218 |
2012 | 17,012 |
2013 | 11,928 |
2014 | 7,957 |
2015 | 1,299 |
2016 and thereafter | $ 1,906 |
Financial Instruments and Fair Value Measurements - Recurring Measurements (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
Dec. 31, 2012
|
Dec. 31, 2011
|
---|---|---|
Interest rate swaps - asset position | $ 996 | $ 0 |
Interest rate swaps liability position | (148,940) | (202,450) |
Total | (147,944) | (202,450) |
Quoted Prices in Active Markets for Identical Assets/ Liabilities (Level 1)
|
||
Interest rate swaps - asset position | 0 | |
Interest rate swaps liability position | 0 | 0 |
Total | 0 | 0 |
Significant Other Observable Inputs (Level 2)
|
||
Interest rate swaps - asset position | 996 | |
Interest rate swaps liability position | (148,940) | (202,450) |
Total | (147,944) | (202,450) |
Unobservable Inputs (Level 3)
|
||
Interest rate swaps - asset position | 0 | |
Interest rate swaps liability position | 0 | 0 |
Total | $ 0 | $ 0 |
Pension liability - Summary of Changes in the Fair Value of the Pension Assets Classified as Level 3 Assets (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | ||||
---|---|---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
Dec. 31, 2012
Fair Value, Inputs, Level 3 [Member]
|
Dec. 31, 2011
Fair Value, Inputs, Level 3 [Member]
|
|
Fair value of plan assets at January 1, | $ 8,229 | $ 7,374 | $ 7,495 | $ 1,587 | $ 1,338 |
Actual return on plan assets: | |||||
Assets still held at reporting date | 63 | 177 | |||
Purchase, sales, issuances and settlements (net) | (53) | 72 | |||
Fair value of plan assets at end of year | $ 8,229 | $ 7,374 | $ 7,495 | $ 1,597 | $ 1,587 |
Long Term Debt - Principal Payments (Tables) (Details) (USD $)
In Thousands, unless otherwise specified |
Dec. 31, 2012
|
Dec. 31, 2011
|
---|---|---|
Long-term Debt, by Maturity [Abstract] | ||
2013 | $ 1,118,005 | |
2014 | 876,667 | |
2015 | 176,667 | |
2016 | 1,110,000 | |
2017 | 910,000 | |
2018 and thereafter | 357,500 | |
Total principal payments | 4,548,839 | 4,434,018 |
Less: Financing fees and equity component of notes | (162,124) | (192,183) |
Total Debt | $ 4,386,715 | $ 4,241,835 |
Financial Instruments and Fair Value Measurements - Amount of Gain/ (Loss) Recognized in Other Comprehensive Income/ (Loss) on Derivatives (Effective Portion) (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
|
Derivatives designated for cash flow hedging relationships [Abstract] | |||
Interest rate swaps - Unrealized gains/(losses) | $ 0 | $ 0 | $ (5,495) |
Interest rate swaps - Realized losses associated with capitalized interest | 0 | 0 | (11,539) |
Total | $ 0 | $ 0 | $ (17,034) |
Other Non Current Assets (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
Dec. 31, 2012
|
Dec. 31, 2011
|
---|---|---|
OTHER NON-CURRENT ASSETS: | ||
Security deposits for derivatives | $ 550 | $ 33,100 |
Option for construction of drillships | 0 | 24,756 |
Deferred mobilization expenses | 53,615 | 24,176 |
Other | 29,125 | 15,540 |
Balance at end of year/period | $ 83,290 | $ 97,572 |
Acquisition of Ocean Freight (Table) (Details) (OceanFreight, USD $)
In Thousands, unless otherwise specified |
Aug. 24, 2011
|
---|---|
OceanFreight
|
|
Assets: | |
Current assets | $ 12,353 |
Vessels | 187,000 |
Vessels under construction | 31,822 |
Above market-acquired time charters | 47,320 |
Other non current assets | 7,589 |
Total assets acquired | 286,084 |
Liabilities: | |
Current liabilities, excluding current portion of long-term bank debt and current portion of financial instruments | 23,774 |
Bank debt, including current portion of $26.524 | 137,711 |
Financial Instruments, including current portion of $5.990 | 9,017 |
Non controlling interest | 57,257 |
Total liabilities | 227,759 |
Net assets acquired | 58,325 |
Cash consideration | 33,760 |
Consideration paid in Ocean Rig UDW's shares (1,570,226 shares exchanged)* | 24,565 |
Total consideration | $ 58,325 |
Interest and Finance Costs
|
12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Dec. 31, 2012
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Interest and Finance Costs [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Interest And Finance Costs |
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Loss per share (Tables)
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12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Dec. 31, 2012
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Earnings per share [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Loss Per Share |
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Financial Instruments and Fair Value Measurements (Tables)
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12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Dec. 31, 2012
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Financial Instruments and Fair Value Measurements [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of Other Derivatives Not Designated as Hedging Instruments, Statements of Financial Performance and Financial Position, Location [Table Text Block] |
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Schedule of Amounts Recognized in Other Comprehensive Income (Loss) [Table Text Block] |
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Effect of Derivative Instruments on the Consolidated Statements of Operations |
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Fair Value, Assets Measured on Recurring and Nonrecurring Basis [Table Text Block] |
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Equity Incentive Plan - Vested Shares (Table) (Details) (USD $)
|
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2012
|
Dec. 31, 2011
|
Dec. 31, 2010
|
|
Number of vested shares
|
|||
Number of vested shares | |||
Balance at beginning of year | 6,092,871 | 3,056,823 | 885,650 |
Granted and vested | 2,005,000 | 2,002,000 | |
Non vested shares granted in prior years and vested in year | 2,505,150 | 1,031,048 | 169,173 |
Balance at end of year | 8,598,021 | 6,092,871 | 3,056,823 |
Weighted average grant date fair value per vested shares
|
|||
Weighted average grant date fair value per vested shares | |||
Balance at beginning of year | 17.23 | 28.71 | 74.59 |
Granted and vested | 5.50 | 6.05 | |
Non vested shares granted in prior years and vested in current year | 5.83 | 6.03 | 56.73 |
Balance at end of year | 13.91 | 17.23 | 28.71 |
Vessels, Drilling Rigs, Drillships, Machinery and Equipment (Tables)
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Dec. 31, 2012
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Vessels, Drilling Rigs, Drillships, Machinery And Equipment [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Vessels |
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Drilling rigs, drillships, machinery and equipment |
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Schedule I - Condensed Financial Information of Dryships Inc. (Parent Company Only) (Tables)
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Dec. 31, 2012
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Dryships Inc.
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Balance Sheets |
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Statements of Operations |
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Statements of Comprehensive Income/ (loss) |
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Statements of Cash Flows |
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Principal payment |
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Advances for Vessels and Drillships under Construction and Acquisitions (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | 12 Months Ended | 12 Months Ended | 3 Months Ended | 9 Months Ended | 4 Months Ended | 6 Months Ended | 12 Months Ended | ||||||||||
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Dec. 31, 2012
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Dec. 31, 2011
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Dec. 31, 2010
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Dec. 31, 2012
Vessels H1241 and H1242
Integer
DWT
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Dec. 31, 2012
Twelve newbuilding tankers
Integer
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Dec. 31, 2012
Ocean Rig UDV
Integer
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Dec. 31, 2012
Vessels H1637A and H1638A
Integer
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Dec. 31, 2012
Drillships Nb 1 Nb 2 And Nb 3
Integer
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Dec. 31, 2011
Drillships Nb 1 Nb 2 And Nb 3
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Dec. 31, 2012
Vessels H1259, H1260, H1261 and H1262
Integer
DWT
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Dec. 31, 2012
Esperona and Blanca tankers
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Dec. 31, 2012
Esperona
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Dec. 31, 2012
Blanca
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Apr. 18, 2011
Ocean Rig Mylos
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Sep. 20, 2012
Ocean Rig Apollo
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Apr. 27, 2011
Ocean Rig Skyros
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Jun. 23, 2011
Ocean Rig Athena
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Dec. 31, 2012
Very Large Ore Carriers [Member]
Integer
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Number of vessels/ drillships ordered | 2 | 12 | 2 | 4 | 5 | |||||||||||||
Size of Vessels | 176,000 | 76,000 | 75,900 | |||||||||||||||
Vessel/ Drillship price | $ 56,164 | $ 33,050 | $ 34,000 | $ 608,000 | $ 622,756 | $ 608,000 | $ 608,000 | |||||||||||
Vessel/ Drillship acquisition contract price | 771,000 | |||||||||||||||||
Delivery Date | Q2 2013 | Q1 2012 | Jul 2013, October 2013, November 2013 & January 2015 | Q2 and Q4 2014 | Q2 2013 and Q1 2014 | |||||||||||||
Number Of Options Exercised | 4 | |||||||||||||||||
Cash consideration received for newbuilding tanker | 116,834 | 119,059 | 73,317 | 10,700 | 10,700 | |||||||||||||
Total number of options | 2 | 6 | ||||||||||||||||
Advances for vessels and drillships under construction | 1,201,807 | 1,027,889 | 2,072,699 | 879,387 | ||||||||||||||
Contract Termination Fees Forfeiture Vessel Deposits | 41,339 | 0 | 0 | 41,339 | ||||||||||||||
Forfeiture In Deposit Amount | $ 19,939 |
Pension liability - Additional Information (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | |||
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Dec. 31, 2013
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Dec. 31, 2012
Integer
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Dec. 31, 2011
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Dec. 31, 2010
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Number Of Pension Benefit Plans | 8 | |||
Number Of Employees Covered | 714 | |||
Defined Benefit Plan, Net Periodic Benefit Cost | $ 1,641 | $ 1,534 | $ 2,008 | |
Estimated net loss for pension benefits | 226 | |||
Ocean Rig [Member]
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Number Of Pension Benefit Plans | 3 | |||
Number Of Employees Covered | 44 | |||
Defined Benefit Plan, Accumulated Benefit Obligation | 8,887 | 7,037 | ||
Defined Benefit Plan, Contributions by Plan Participants | 1,122 | |||
Us Gaap Fair Value Tier Level 1 Listed Equities Daily Average Turnover Threshold | 3,462 | |||
Pension and Other Postretirement Benefit Contributions | $ 5,205 | $ 3,738 | $ 1,775 | |
Managed By Norwegian Life Insurance Companies [Member]
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Number Of Pension Benefit Plans | 5 | |||
Managed By International Life Insurance Companies [Member]
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Number Of Pension Benefit Plans | 3 |
Transactions with related parties - Cardiff Mariine Additional Information (Details)
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12 Months Ended | 12 Months Ended | ||||
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Dec. 31, 2012
Cardiff Marine [Member]
USD ($)
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Dec. 31, 2011
Cardiff Marine [Member]
USD ($)
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Dec. 31, 2010
Cardiff Marine [Member]
USD ($)
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Dec. 31, 2012
Cardiff Marine [Member]
EUR (€)
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Dec. 31, 2012
Global Services Agreement with Cardiff [Member]
USD ($)
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Dec. 31, 2011
Global Services Agreement with Cardiff [Member]
USD ($)
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Quarterly fees for financial accounting services | $ 347,986 | € 236,626 | ||||
Professional Fees | 0 | 0 | 1,983,000 | |||
Fees paid for employment arrangements | 6,193,000 | 2,357,000 | ||||
Sale And Purchase Fees | $ 960,000 |
Accumulated other comprehensive loss (Tables)
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Dec. 31, 2012
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Accumulated other comprehensive loss [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of Accumulated Other Comprehensive Income (Loss) [Table Text Block] |
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Significant Accounting Policies
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12 Months Ended | ||||||||||||
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Dec. 31, 2012
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Significant Accounting Policies [Abstract] | |||||||||||||
Significant Accounting Policies | 2. Significant Accounting policies: (a)Principles of consolidation: The accompanying consolidated financial statements have been prepared in accordance with Generally Accepted Accounting Principles in the United States of America (“US GAAP”) and include the accounts and operating results of DryShips, its wholly-owned subsidiaries and its VIEs. As of December 31, 2012, the Company consolidated 100% one VIE for which it is deemed to be the primary beneficiary, i.e. it has a controlling financial interest in this entity. The VIE's total assets and liabilities, as of December 31, 2012, were $25,474 and $26,764 respectively, while total liabilities exceeded total assets by $1,290. A VIE is an entity that in general does not have equity investors with voting rights or that has equity investors that do not provide sufficient financial resources for the entity to support its activities. A controlling financial interest in a VIE is present when a company has the power to direct the activities of a VIE that most significantly impact the entity's economic performance and absorbs a majority of an entity's expected losses, receives a majority of an entity's expected residual returns, or both. All intercompany balances and transactions have been eliminated in consolidation. Where necessary, comparatives have been reclassified to conform to changes in presentation in the current year. (b) Business combinations: The Company uses the acquisition method of accounting under the authoritative guidance on business combinations, which requires an acquirer in a business combination to recognize the assets acquired, the liabilities assumed, and any non-controlling interest in the acquiree at their fair values at the acquisition date. The costs of the acquisition and any related restructuring costs are to be recognized separately in the Consolidated Statements of Operations. The acquired company's operating results are included in the Company's consolidated financial statements starting on the date of acquisition. The purchase price is equivalent to the fair value of the consideration transferred and liabilities incurred, including liabilities related to contingent consideration. Tangible and identifiable intangible assets acquired and liabilities assumed as of the date of acquisition are recorded at the acquisition date fair value. Goodwill is recognized for the excess of purchase price over the net fair value of assets acquired and liabilities assumed. When the fair value of net assets acquired exceeds the fair value of consideration transferred plus any non-controlling interest in the acquiree, the excess is recognized as a gain. (c) Intangible assets: The Company's finite-lived acquired intangible assets are amortized on a straight-line basis over their estimated useful lives as follows:
In accordance with guidance related to Accounting for the Impairment or Disposal of Long-Lived Assets, the Company evaluates the potential impairment of finite-lived acquired intangible assets when there are indicators of impairment. The finite-lived intangibles are tested for impairment whenever events or changes in circumstances indicate that the carrying amount of any asset may not be recoverable based on estimates of future undiscounted cash flows. In the event of impairment, the asset is written down to its fair value. An impairment loss, if any, is measured as the amount by which the carrying amount of the asset exceeds its fair value. For finite-lived intangible assets, no impairment was recognized during any period presented.
(d) Use of estimates: The preparation of consolidated financial statements in conformity with US GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. (e) Comprehensive income/(loss): The Company's comprehensive income/(loss) is comprised of net income, actuarial gains/losses related to the adoption and implementation of ASC 715, “Compensation-Retirement Benefits”, as well as losses in the fair value of the derivatives that qualify for hedge accounting in accordance with ASC 815 “Derivatives and Hedging” and realized gains/losses on cash flow hedges associated with capitalized interest in accordance with ASC 815-30-35-38 “Derivatives and Hedging”. In June 2011, the Financial Accounting Standards Board (“FASB”) issued Accounting Standard Update (“ASU”) 2011-05, "Comprehensive Income, Presentation of Comprehensive Income (Topic 220)", which revises the manner in which entities present comprehensive income in their financial statements. The amendments in this ASU were adopted by the Company in the December 31, 2011 consolidated financial statements and, as a result, the consolidated financial statements for the year ended December 31, 2010 were revised to include a separate statement of comprehensive income and to exclude the components of other comprehensive income from the statement of stockholders' equity. (f) Cash and cash equivalents: The Company considers highly liquid investments such as time deposits and certificates of deposit with an original maturity of three months or less to be cash equivalents. (g) Restricted cash: Restricted cash may include: (i) cash collateral required under the Company's financing swap and forward freight arrangements (“FFAs”), (ii) retention accounts which can only be used to fund the loan installments coming due, (iii) minimum liquidity collateral requirements or minimum required cash deposits, as defined in the Company's loan agreements, (iv) taxes withheld from employees and deposited in designated bank accounts, and (v) amounts pledged as collateral for bank guarantees to suppliers. (h) Trade accounts receivable net: The amount shown as trade accounts receivable, at each balance sheet date, includes receivables from customers for hire of vessels, drilling rigs and drillships, freight and demurrage billings, net of allowance for doubtful receivables. At each balance sheet date, all potentially uncollectible accounts are assessed individually for purposes of determining the appropriate allowance for doubtful receivables.
(i) Short-term investments: Short-term investments generally represent investments in time deposits, which have maturities in excess of three months but less than twelve months. These investments are accounted for at cost. (j) Concentration of credit risk: Financial instruments, which potentially subject the Company to significant concentrations of credit risk, consist principally of cash and cash equivalents; trade accounts receivable and derivative contracts (interest rate swaps, foreign currency contracts and forward freight agreements). The maximum exposure to loss due to credit risk is the book value at the balance sheet date. The Company places its cash and cash equivalents, consisting mostly of bank deposits, with qualified financial institutions. The Company performs periodic evaluations of the relative credit standing of those financial institutions. The Company is exposed to credit risk in the event of non-performance by counter parties to derivative instruments; however, the Company limits its exposure by diversifying among counter parties. The Company's major customers are oil companies, which reduces its credit risk. When considered necessary, additional arrangements are put in place to minimize credit risk, such as letters of credit or other forms of payment guarantees. The Company limits its credit risk with trade accounts receivable by performing ongoing credit evaluations of its customers' financial condition and generally does not require collateral for its trade accounts receivable. The Company has made advances for the construction of vessels and drillships to the yards. The ownership of the vessels and drillships is transferred from the yard to the Company at delivery. The credit risk of the advances is, to a large extent, reduced through refund guarantees issued by financial institutions. As of December 31, 2012, cumulative installment payments made to the yards amounted to approximately $1,054,049 for the vessels and drillships under construction. These installment payments are, to a large extent, secured with irrevocable letters of guarantee, covering pre-delivery installments if the contract is rescinded in accordance with the terms of the contract. The irrevocable letters of guarantee are issued by financial institutions.
(k) Advances for vessels and drillships under construction: This represents amounts expended by the Company in accordance with the terms of the construction contracts for vessels and drillships as well as other expenses incurred directly or under a management agreement with a related party in connection with on site supervision. In addition, interest costs incurred during the construction (until the asset is substantially complete and ready for its intended use) are capitalized. The carrying value of vessels and drillships under construction (“Newbuildings”) represents the accumulated costs at the balance sheet date. Cost components include payments for yard installments and variation orders, commissions to related party, construction supervision, equipment, spare parts, capitalized interest, costs related to first time mobilization and commissioning costs. No charge for depreciation is made until commissioning of the newbuilding has been completed and it is ready for its intended use. (l) Capitalized interest: Interest expense is capitalized during the construction period of rigs, drillships and vessels based on accumulated expenditures for the applicable project at the Company's current rate of borrowing. The amount of interest expense capitalized in an accounting period is determined by applying an interest rate (“the capitalization rate”) to the average amount of accumulated expenditures for the asset during the period. The capitalization rates used in an accounting period are based on the rates applicable to borrowings outstanding during the period. The Company does not capitalize amounts in excess of actual interest expense incurred in the period. If the Company's financing plans associate a specific new borrowing with a qualifying asset, the Company uses the rate on that borrowing as the capitalization rate to be applied to that portion of the average accumulated expenditures for the asset that does not exceed the amount of that borrowing. If average accumulated expenditures for the asset exceed the amounts of specific new borrowings associated with the asset, the capitalization rate applied to such excess is a weighted average of the rates applicable to other borrowings of the Company. Capitalized interest expense for the years ended December 31, 2010, 2011 and 2012 amounted to $78,451, $76,068 and $58,967, respectively (Note 18). (m) Insurance claims: The Company records insurance claim recoveries for insured losses incurred on damages to fixed assets, loss of hire and for insured crew medical expenses under “Other current assets”. Insurance claims are recorded, net of any deductible amounts, at the time the Company's fixed assets suffer insured damages, loss due to the vessel/ drilling unit being wholly or partially deprived of income as a consequence of damage to the unit or when crew medical expenses are incurred, recovery is probable under the related insurance policies and the Company can make an estimate of the amount to be reimbursed following the insurance claim. (n) Inventories: Inventories consist of consumable bunkers (if any), lubricants and victualling stores, which are stated at the lower of cost or market value and are recorded under ”Other current assets”. Cost is determined by the first in, first out method. (o) Foreign currency translation: The functional currency of the Company is the U.S. Dollar since the Company operates in international shipping and drilling markets and therefore, primarily transacts business in U.S. Dollars. The Company's accounting records are maintained in U.S. Dollars. Transactions involving other currencies during the year are converted into U.S. Dollars using the exchange rates in effect at the time of the transactions. At the balance sheet dates, monetary assets and liabilities, which are denominated in other currencies, are translated into U.S. Dollars at the year-end exchange rates. Resulting gains or losses are included in “Other, net” in the accompanying consolidated statements of operations. (p) Fixed assets, net: (i) Drybulk and tanker carrier vessels are stated at cost, which consists of the contract price and any material expenses incurred upon acquisition (initial repairs, improvements, delivery expenses and other expenditures to prepare the vessel for its initial voyage). Subsequent expenditures for major improvements are also capitalized when they appreciably extend the useful life, increase the earning capacity or improve the efficiency or safety of the vessels. The cost of each of the Company's vessels is depreciated beginning when the vessel is ready for its intended use, on a straight-line basis over the vessel's remaining economic useful life, after considering the estimated residual value. Vessel's residual value is equal to the product of its lightweight tonnage and estimated scrap rate per ton. In general, management estimates the useful life of the Company's vessels to be 25 years from the date of initial delivery from the shipyard. When regulations place limitations over the ability of a vessel to trade on a worldwide basis, its remaining useful life is adjusted at the date such regulations are adopted. (ii) Drilling rigs and drillships are stated at cost less accumulated depreciation. Such costs include the cost of adding or replacing parts of drilling rig or drillship machinery and equipment when the cost is incurred, if the recognition criteria are met. The recognition criteria require that the cost incurred extends the useful life of a drilling rig or drillship. The carrying amounts of those parts that are replaced are written off and the cost of the new parts is capitalized. Depreciation is calculated on a straight-line basis over the useful life of the assets after considering the estimated residual value as follows: bare deck 30 years and other asset parts 5 to 15 years. The residual values of the drilling rigs and drillships are estimated at $35 million and $50 million, respectively. (iii) IT and office equipment are recorded at cost and are depreciated on a straight-line basis over 5 years. (q) Long lived assets held for sale: The Company classifies long lived assets and disposal groups as being held for sale in accordance with ASC 360, “Property, Plant and Equipment”, when: (i) management has committed to a plan to sell the long lived assets; (ii) the long lived assets are available for immediate sale in their present condition; (iii) an active program to locate a buyer and other actions required to complete the plan to sell the long lived assets have been initiated; (iv) the sale of the long lived assets is probable and transfer of the asset is expected to qualify for recognition as a completed sale within one year; and (v) the long lived assets are being actively marketed for sale at a price that is reasonable in relation to its current fair value and actions required to complete the plan indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Long lived assets classified as held for sale are measured at the lower of their carrying amount or fair value less cost to sell. These long lived assets are not depreciated once they meet the criteria to be classified as held for sale. When the Company concludes a Memorandum of Agreement for the disposal of a vessel/rig which has yet to complete a time charter or drilling contract, it is considered that the held for sale criteria discussed in guidance are not met until the time charter or drilling contract has been completed as the vessel/rig is not available for immediate sale. As a result, such vessels/rigs are not classified as held for sale. When the Company concludes a Memorandum of Agreement for the disposal of a vessel/rig which has no time charter or drilling contract to complete or a contract that is transferable to a buyer, it is considered that the held for sale criteria discussed in the guidance are met. As a result such vessels/rigs are classified as held for sale. Furthermore, in the period a long-lived asset meets the held for sale criteria, a loss is recognized for any reduction of the long-lived asset's carrying amount to its fair value less cost to sell. No such adjustments were identified for the years ended December 31, 2010 and 2012, while for 2011 an impairment of $5,917 was recognized in the accompanying consolidated statement of operations relating to one long live asset which was held for sale as of June 30, 2011. (r) Fair value of above/below market acquired time charter or drilling contracts: In a business combination the Company identifies assets acquired or liabilities assumed and records all such identified assets or liabilities at fair value. Fair value is determined by reference to market data. The Company values any asset or liability arising from the market value of the time charters or drilling contracts assumed when a vessel and/or rig is acquired. The value of the asset or liability at the date of delivery of a vessel or drilling rig/drillship is based on the difference between the current fair values of a contract with similar characteristics as the time charter or drilling contract assumed and the net present value of future contractual cash flows from the contract assumed. When the present value of the time charter or drilling contract assumed is greater than the current fair value of such contract, the difference is recorded as “Fair value of above market acquired time charter/drilling contracts”. When the opposite situation occurs, the difference is recorded as “Fair value of below market acquired time charter/drilling contracts”. Such assets and liabilities are amortized as a reduction of, or an increase in revenue, respectively over the period of the time charter or drilling contract assumed.
(s) Impairment of long-lived assets: The Company reviews for impairment long-lived assets and intangible long-lived assets held and used whenever events or changes in circumstances indicate that the carrying amount of the assets may not be recoverable. In this respect, the Company reviews its assets for impairment on an asset by asset basis. When the estimate of undiscounted cash flows, excluding interest charges, expected to be generated by the use of the asset is less than its carrying amount, the Company evaluates the asset for impairment loss. The impairment loss is determined by the difference between the carrying amount of the asset and the fair value of the asset. The Company evaluates the carrying amounts of its vessels, rigs and drillships by obtaining vessel, rigs and drillships appraisals to determine if events have occurred that would require modification to their carrying values or useful lives. In evaluating useful lives and carrying values of long-lived assets, the Company reviews certain indicators of potential impairment, such as undiscounted projected operating cash flows, vessel, rigs and drillships sales and purchases, business plans and overall market conditions. In developing estimates of future undiscounted cash flows, the Company makes assumptions and estimates about the vessels', rigs and drillships, future performance, with the significant assumptions being related to charter and drilling rates, fleet utilization, operating expenses, capital expenditures, residual value and the estimated remaining useful life of each vessel, rig and drillship. The assumptions used to develop estimates of future undiscounted cash flows are based on historical trends as well as future expectations. To the extent impairment indicators are present, the Company determines undiscounted projected net operating cash flows for each vessel, rig and drillship and compares them to their carrying value. The projected net operating cash flows are determined by considering the charter revenues and drilling revenues from existing time charters and drilling contracts for the fixed fleet days and an estimated daily time charter equivalent for the unfixed days. The Company estimates the daily time charter equivalent for the unfixed days based on the most recent ten year historical average for similar vessels and utilizing available market data for time charter and spot market rates and forward freight agreements over the remaining estimated life of the vessel, assumed to be 25 years from the delivery of the vessel from the shipyard, net of brokerage commissions, expected outflows for vessels' maintenance and vessel operating expenses (including planned drydocking and special survey expenditures), assuming an average annual inflation rate of 2% and fleet utilization of 98%. The salvage value used in the impairment test is estimated to be $250 per light weight ton (LWT) for vessels, while $35,000 and $50,000 for drilling rigs and drillships respectively, in accordance with the Company's vessels' depreciation policy. If the Company's estimate of undiscounted future cash flows for any vessel is lower than the vessel's carrying value, the carrying value is written down, by recording a charge to operations, to the vessel's fair market value if the fair market value is lower than the vessel's carrying value.
The Company's analysis for the year ended December 31, 2012, which also involved sensitivity tests on the time charter rates, drilling rates and fleet utilization (being the most sensitive inputs to variances), allowing for variances ranging from 97.5% to 92.5% depending on vessel type on time charter rates, indicated no impairment on any of its vessels, drilling rigs and drillships. Although the Company believes that the assumptions used to evaluate potential impairment are reasonable and appropriate, such assumptions are highly subjective. There can be no assurance as to how long charter rates and vessel values will remain at their currently low levels or whether they will improve by any significant degree. Charter rates may remain at depressed levels for some time which could adversely affect the Company's revenue and profitability, and future assessments of vessel impairment. While for the drilling segment there can be no assurance as to how long drilling rates and drilling rigs/drillships values will remain at their currently high levels or whether they will improve or the opposite by any significant degree. As a result of the impairment review, the Company determined that the carrying amounts of its assets were recoverable and therefore, concluded that no impairment loss was necessary for 2010, 2011 and 2012. However, due to Company's decision to sell certain vessels during the years and/or subsequent to the balance sheet dates and based on the agreed-upon sales price, an impairment charge relating to assets held for use of $3,588, $144,688 and $0, for each of the years ended December 31, 2010, 2011 and 2012, respectively, was recognized (Notes 7 and 12). (t) Dry-docking costs: The Company follows the direct expense method of accounting for dry-docking costs whereby costs are expensed in the period incurred for the vessels, drilling rigs and drillships. (u) Class costs: The Company follows the direct expense method of accounting for periodic class costs incurred during special surveys of drilling rigs and drillships, normally every five years. Class costs and other maintenance costs are expensed in the period incurred and included in "Vessels, drilling rigs and drillships operating expenses”.
(v) Deferred financing costs: Deferred financing costs include fees, commissions and legal expenses associated with the Company's long- term debt. These costs are amortized over the life of the related debt using the effective interest method and are included in interest expense. Unamortized fees relating to loans repaid or refinanced as debt extinguishments are expensed as interest and finance costs in the period the repayment or extinguishment is made. Arrangement fees paid to lenders for loans which the Company has not drawn down are capitalized and included in other current and non-current assets. Amortization and write offs for each of the years ended December 31, 2010, 2011 and 2012 amounted to $8,249, $21,952 and $17,565, respectively (Note 15). (w) Convertible senior notes: In accordance with ASC Topic 470-20, “Debt with Conversion and Other Options,” for convertible debt instruments that contain cash settlement options upon conversion at the option of the issuer, the Company determines the carrying amounts of the liability and equity components of its convertible notes by first determining the carrying amount of the liability component of the convertible notes by measuring the fair value of a similar liability that does not have an associated equity component. The carrying amount of the equity component representing the embedded conversion option is then determined by deducting the fair value of the liability component from the total proceeds. The resulting debt discount is amortized to interest cost using the effective interest method over the period the debt is expected to be outstanding as an additional non-cash interest expense. Transaction costs associated with the instrument are allocated pro-rata between the debt and equity components (Note 11). (x) Revenue and related expenses: (i) Drybulk carrier and tanker vessels: Time and bareboat charters: The Company generates its revenues from charterers for the charter hire of its vessels, which are considered to be operating lease arrangements. Vessels are chartered using time and bareboat charters and where a contract exists, the price is fixed, service is provided and collection of the related revenue is reasonably assured, revenue is recognized as it is earned ratably on a straight-line basis over the duration of the period of each time charter as adjusted for the off-hire days that the vessel spends undergoing repairs, maintenance and upgrade work depending on the condition and specification of the vessel.
Voyage charters: Voyage charter is a charter where a contract is made in the spot market for the use of a vessel for a specific voyage for a specified freight rate per ton. If a charter agreement exists and collection of the related revenue is reasonably assured, revenue is recognized as it is earned ratably during the duration of the period of each voyage. A voyage is deemed to commence upon the completion of discharge of the vessel's previous cargo and is deemed to end upon the completion of discharge of the current cargo. Demurrage income represents payments by a charterer to a vessel owner when loading or discharging time exceeds the stipulated time in the voyage charter and is recognized ratably as earned during the related voyage charter's duration period. Pooling arrangements: For vessels operating in pooling arrangements, the Company earns a portion of total revenues generated by the pool, net of expenses incurred by the pool. The amount allocated to each pool participant vessel, including the Company's vessels, is determined in accordance with an agreed-upon formula, which is determined by points awarded to each vessel in the pool based on the vessel's age, design and other performance characteristics. Revenue under pooling arrangements is accounted for on the accrual basis and is recognized when an agreement with the pool exists, price is fixed, service is provided and the collectability is reasonably assured. The allocation of such net revenue may be subject to future adjustments by the pool however, historically, such changes have not been material. Voyage related and vessel operating costs: Voyage related and vessel operating costs are expensed as incurred. Under a time charter, specified voyage costs, such as fuel and port charges are paid by the charterer and other non-specified voyage expenses, such as commissions, are paid by the Company. Vessel operating costs including crews, maintenance and insurance are paid by the Company. Under voyage charter arrangements, voyage expenses, primarily consisting of commissions, port, canal and bunker expenses that are unique to a particular charter, are paid for by the Company, except for commissions, which are either paid for by the Company or are deducted from the freight revenue. All voyage and vessel operating expenses are expensed as incurred, except for commissions. Commissions are deferred and amortized over the related voyage charter period to the extent revenue has been deferred since commissions are earned as the Company's revenues are earned. Under a bareboat charter, the charterer assumes responsibility for all voyage and vessel operating expenses and risk of operation. Deferred voyage revenue: Deferred voyage revenue primarily relates to cash advances received from charterers. These amounts are recognized as revenue over the voyage or charter period.
(ii) Drilling rigs and drillships: Revenues: The Company's services and deliverables are generally sold based upon contracts with its customers that include fixed or determinable prices. The Company recognizes revenue when delivery occurs, as directed by its customer, or the customer assumes control of physical use of the asset and collectability is reasonably assured. The Company evaluates if there are multiple deliverables within its contracts and whether the agreement conveys the right to use the drill rigs and drillships for a stated period of time and meets the criteria for lease accounting, in addition to providing a drilling services element, which is generally compensated for by day rates. In connection with drilling contracts, the Company may also receive revenues for preparation and mobilization of equipment and personnel or for capital improvements to the drilling rigs or drillships and day rate or fixed price mobilization and demobilization fees. Revenues are recorded net of agents' commissions. There are two types of drilling contracts: well contracts and term contracts. (a) Well contracts: Well contracts are contracts under which the assignment is to drill a certain number of wells. Revenue from day-rate based compensation for drilling operations is recognized in the period during which the services are rendered at the rates established in the contracts. All mobilization revenues, direct incremental expenses of mobilization and contributions from customers for capital improvements are initially deferred and recognized as revenues and expenses, as applicable over the estimated duration of the drilling period. To the extent that expenses exceed revenue to be recognized, they are expensed as incurred. Demobilization revenues and expenses are recognized over the demobilization period. All revenues for well contracts are recognized as “Service revenues” in the statement of operations. (b) Term contracts: Term contracts are contracts under which the assignment is to operate the unit for a specified period of time. For these types of contracts the Company determines whether the arrangement is a multiple element arrangement containing both a lease element and drilling services element. For revenues derived from contracts that contain a lease, the lease elements are recognized as “Leasing revenues” in the statement of operations on a basis approximating straight line over the lease period. The drilling services element is recognized as “Service revenues” in the period in which the services are rendered at estimated fair value. Revenues related to the drilling element of mobilization and direct incremental expenses of drilling services are deferred and recognized over the estimated duration of the drilling period. To the extent that expenses exceed revenue to be recognized, they are expensed as incurred. Demobilization fees and expenses are recognized over the demobilization period. Contributions from customers for capital improvements are initially deferred and recognized as revenues over the estimated duration of the drilling contract. (y) Earnings/(loss) per common share: Basic earnings/ (loss) per common share are computed by dividing net income/ (loss) available to common stockholders by the weighted average number of common shares outstanding during the year. Diluted earnings/ (loss) per common share reflect the potential dilution that could occur if securities or other contracts to issue common stock were exercised. Dilution has been computed by the treasury stock method whereby all of the Company's dilutive securities are assumed to be exercised or converted and the proceeds used to repurchase common shares at the weighted average market price of the Company's common stock during the relevant periods. The incremental shares (the difference between the number of shares assumed issued and the number of shares assumed purchased) are included in the denominator of the diluted earnings/ (loss) per share computation. (z) Segment reporting: The Company determined that it operates under three reportable segments, as a provider of drybulk commodities transportation services for the steel, electric utility, construction and agri-food industries (drybulk segment), as a provider of ultra deep water drilling services (drilling segment) and as a provider of transportation services of crude and refined petroleum cargoes (tanker segment). The accounting policies applied to the reportable segments are the same as those used in the preparation of the Company's consolidated financial statements.
(aa) Financial instruments: The Company designates its derivatives based upon guidance on ASC 815, “Derivatives and Hedging” which establishes accounting and reporting requirements for derivative instruments, including certain derivative instruments embedded in other contracts and for hedging activities. The guidance on accounting for certain derivative instruments and certain hedging activities requires all derivative instruments to be recorded on the balance sheet as either an asset or liability measured at its fair value, with changes in fair value recognized in earnings unless specific hedge accounting criteria are met. (i) Hedge accounting: At the inception of a hedge relationship, the Company formally designates and documents the hedge relationship to which the Company wishes to apply hedge accounting and the risk management objective and strategy undertaken for the hedge. The documentation includes identification of the hedging instrument, hedged item or transaction, the nature of the risk being hedged and how the entity will assess the hedging instrument's effectiveness in offsetting exposure to changes in the hedged item's cash flows attributable to the hedged risk. Such hedges are expected to be highly effective in achieving offsetting changes in cash flows and are assessed on an ongoing basis to determine whether they actually have been highly effective throughout the financial reporting periods for which they were designated. The Company is party to interest swap agreements where it receives a floating interest rate and pays a fixed interest rate for a certain period in exchange. Contracts which meet the strict criteria for hedge accounting are accounted for as cash flow hedges. A cash flow hedge is a hedge of the exposure to variability in cash flows that is attributable to a particular risk associated with a recognized asset or liability, or a highly probable forecasted transaction that could affect profit or loss. The effective portion of the gain or loss on the hedging instrument is recognized directly as a component of “Accumulated other comprehensive income/(loss)” in equity, while any ineffective portion, if any, is recognized immediately in current period earnings. The Company discontinues cash flow hedge accounting if the hedging instrument expires and it no longer meets the criteria for hedge accounting or designation is revoked by the Company. At that time, any cumulative gain or loss on the hedging instrument recognized in equity is kept in equity until the forecasted transaction occurs. When the forecasted transaction occurs, any cumulative gain or loss on the hedging instrument is recognized in the statement of operations. If a hedged transaction is no longer expected to occur, the net cumulative gain or loss recognized in equity is transferred to net profit or loss for the year as financial income or expense. (ii) Other derivatives: Changes in the fair value of derivative instruments that have not been designated as hedging instruments are reported in current period earnings. (ab) Fair value measurements: The Company follows the provisions of ASC 820, “Fair Value Measurements and Disclosures” which defines, and provides guidance as to the measurement of, fair value. ASC 820 creates a hierarchy of measurement and indicates that, when possible, fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. The fair value hierarchy gives the highest priority (Level 1) to quoted prices in active markets and the lowest priority (Level 3) to unobservable data, for example, the reporting entity's own data. Under the standard, fair value measurements are separately disclosed by level within the fair value hierarchy (Note12). (ac) Stock-based compensation: Stock-based compensation represents vested and non-vested common stock granted to employees and directors, for their services. The Company calculates total compensation expense for the award based on its fair value on the grant date and amortizes the total compensation on an accelerated basis over the vesting period of the award or service period (Note 14).
(ad) Income taxes: Income taxes have been provided for based upon the tax laws and rates in effect in the countries in which the Company's operations are conducted and income is earned. There is no expected relationship between the provision for/or benefit from income taxes and income or loss before income taxes because the countries in which the Company operates have taxation regimes that vary not only with respect to the nominal rate, but also in terms of the availability of deductions, credits and other benefits. Variations also arise because income earned and taxed in any particular country or countries may fluctuate from year to year. Deferred tax assets and liabilities are recognized for the anticipated future tax effects of temporary differences between the financial statement basis and the tax basis of the Company's assets and liabilities using the applicable jurisdictional tax in effect at the year end. A valuation allowance for deferred tax assets is recorded when it is more likely than not that some or all of the benefit from the deferred tax asset will not be realized. The Company accrues interest and penalties related to its liabilities for unrecognized tax benefits as a component of income tax expense. (ae) Pension liability: The Company has eight retirement plans, of which five are managed and funded through Norwegian life insurance companies and three through international life insurance companies. The projected benefit obligations are calculated based on the projected unit credit method and compared with the fair value of pension assets. Because a significant portion of the pension liability will not be paid until well into the future, numerous assumptions have to be made when estimating the pension liability at the balance sheet date. The assumptions may be split into two categories; actuarial assumptions and financial assumptions. The actuarial assumptions are unbiased, mutually compatible and represent the Company's best estimates of the variables. The financial assumptions are based on market expectations at the balance sheet date, for the period over which the obligations are to be settled. Due to the long-term nature of the pension obligations, they are discounted to present value. The funded status or net amount of the projected benefit obligation and pension asset (net pension liability or net pension asset) of each of its defined benefit plans, is recorded in the balance sheet under the caption “Pension liability” with an offsetting amount in “Accumulated other comprehensive income/(loss)” for any amounts of actuary gains of losses or prior service cost that has not been amortized to income. Net pension costs (benefit earned during the period including interest on the projected benefit obligation, less estimated return on pension assets and amortization of accumulated changes in estimates) are included in “General and administrative expenses” and “Vessel, drilling rigs and drillships operating expenses”. Actuarial gains and losses are recognized as income or expense when the net cumulative unrecognized actuarial gains and losses for each individual plan at the end of the previous reporting year exceed 10% of the higher of the present value of the defined benefit obligation and the fair value of plan assets at that date. These gains and losses are recognized over the expected average remaining working lives of the employees participating in the plans. (af) Commitments and contingencies: Provisions are recognized when the Company has a present legal or constructive obligation as a result of past events; it is probable that an outflow of resources embodying economic benefits will be required to settle the obligation; and a reliable estimate of the amount of the obligation can be made. Provisions are reviewed at each balance sheet date. (ag) Recent accounting pronouncements: There are no recent accounting pronouncements issued in 2012, whose adoption would have a material impact on the Company's consolidated financial statements in the current year or are expected to have a material impact on future years.
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Commitments and contingencies - Toro's sale agreement (Details) (Toro's sale agreement [Member], USD $)
In Thousands, unless otherwise specified |
1 Months Ended | ||
---|---|---|---|
Jan. 29, 2009
|
Feb. 13, 2009
|
Jul. 17, 2008
DWT
|
|
Toro's sale agreement [Member]
|
|||
Size of Vessels | 73,034 | ||
Vessel Sale Price | $ 63,400 | ||
Revised vessel sale price | 36,000 | ||
Security Deposit Released In Favor Of Company | 6,300 | ||
Additional Security deposit | 1,500 | ||
Security deposit not paid | $ 1,500 |
Transactions with Related Parties - Fabiana Ltd (Details)
|
1 Months Ended | 0 Months Ended | ||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Dec. 31, 2012
USD ($)
|
Dec. 31, 2011
USD ($)
|
Jan. 25, 2010
Compensation Committee approval on 25 January 2010 [Member]
USD ($)
|
Jan. 25, 2010
Compensation Committee approval on 25 January 2010 [Member]
EUR (€)
|
Dec. 31, 2012
Compensation Committee approval on 25 January 2010 [Member]
|
Dec. 31, 2011
Compensation Committee approval on 25 January 2010 [Member]
|
Dec. 31, 2010
Compensation Committee approval on 25 January 2010 [Member]
|
Jan. 12, 2011
Compensation Committee approval on 12 January 2011 [Member]
USD ($)
|
Dec. 31, 2018
Compensation Committee approval on 12 January 2011 [Member]
|
Dec. 31, 2017
Compensation Committee approval on 12 January 2011 [Member]
|
Dec. 31, 2016
Compensation Committee approval on 12 January 2011 [Member]
|
Dec. 31, 2015
Compensation Committee approval on 12 January 2011 [Member]
|
Dec. 31, 2014
Compensation Committee approval on 12 January 2011 [Member]
|
Dec. 31, 2013
Compensation Committee approval on 12 January 2011 [Member]
|
Dec. 31, 2012
Compensation Committee approval on 12 January 2011 [Member]
|
Dec. 31, 2011
Compensation Committee approval on 12 January 2011 [Member]
|
|
Annual Remuneration | $ 3,600,000 | € 2,700,000 | $ 4,000,000 | |||||||||||||
Shares Granted | 4,500,000 | 4,500,000 | 9,000,000 | |||||||||||||
Common stock par value | $ 0.01 | $ 0.01 | $ 0.01 | |||||||||||||
Vesting period | 3 years 0 months 0 days | 3 years 0 months 0 days | 8 years 0 months 0 days | |||||||||||||
Vested number of shares on grant date | 1,000,000 | 1,000,000 | 1,000,000 | |||||||||||||
Vested in period | 1,500,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 | 1,000,000 |
Subsequent Events - Additional information (Details) (USD $)
In Thousands, except Share data, unless otherwise specified |
1 Months Ended | 2 Months Ended | 12 Months Ended | 0 Months Ended | 1 Months Ended | 3 Months Ended | ||
---|---|---|---|---|---|---|---|---|
Feb. 14, 2013
|
Mar. 03, 2013
|
Dec. 31, 2013
|
Dec. 31, 2012
|
Jan. 09, 2013
Drilling Rig Eirik Raude [Member]
Integer
|
Feb. 01, 2013
Drilling Rig Eirik Raude [Member]
Integer
|
Feb. 14, 2013
Option Of Up To Four Period Extensions [Member]
|
Mar. 15, 2013
Far Eastern Shipyard Agreement [Member]
|
|
Number Of Wells | 1 | |||||||
Number Of Wells Based On Contract Option | 3 | 4 | ||||||
Maximum duration | 6 months | 12 months | 6 months | |||||
Sale Of Subsidiarys Common Stock | 7,500,000 | |||||||
Proceeds From Contract Termination | $ 13,700 | |||||||
Non Recoverable Revenue Due To Contract Termination | 14,100 | |||||||
Seller Credit | $ 12,500 | |||||||
Number of shares of Ocean Rig UDW pledged as collateral | 1,602,500 | |||||||
Variable rate basis | LIBOR | LIBOR | ||||||
Spread on variable rate | 3.00% |
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