|
|
|
Title of class
|
|
Name of exchange on which registered
|
|
|
|
Common stock, $0.01 par value
|
|
The NASDAQ Stock Market LLC
|
Preferred stock purchase rights
|
|
The NASDAQ Stock Market LLC
|
|
|
|
|
|
|
US GAAP x
|
International Financial Reporting Standards as issued
by the International Accounting Standards Board ¨
|
Other ¨
|
|
FORWARD-LOOKING STATEMENTS
|
1
|
|
PART I
|
|
3
|
Item 1.
|
Identity of Directors, Senior Management and Advisers
|
3
|
Item 2.
|
Offer Statistics and Expected Timetable
|
3
|
Item 3.
|
Key Information
|
3
|
Item 4.
|
Information on the Company
|
30
|
Item 4A.
|
Unresolved Staff Comments
|
41
|
Item 5.
|
Operating and Financial Review and Prospects
|
41
|
Item 6.
|
Directors, Senior Management and Employees
|
65
|
Item 7.
|
Major Shareholders and Related Party Transactions
|
71
|
Item 8.
|
Financial Information
|
75
|
Item 9.
|
The Offer and Listing
|
76
|
Item 10.
|
Additional Information
|
78
|
Item 11.
|
Quantitative and Qualitative Disclosures about Market Risk
|
82
|
Item 12.
|
Description of Securities Other than Equity Securities
|
84
|
PART II
|
|
85
|
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies
|
85
|
Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
85
|
Item 15.
|
Controls and Procedures
|
85
|
Item 16A.
|
Audit Committee Financial Expert
|
86
|
Item 16B.
|
Code of Ethics
|
86
|
Item 16C.
|
Principal Accountant Fees and Services
|
86
|
Item 16D
|
Exemptions from the Listing Standards for Audit Committees
|
87
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
87
|
Item 16F
|
Change in Registrant's Certifying Accountant
|
87
|
Item 16G.
|
Corporate Governance
|
87
|
Item 16H.
|
Mine Safety Disclosure
|
87
|
PART III
|
|
88
|
Item 17.
|
Financial Statements
|
88
|
Item 18.
|
Financial Statements
|
88
|
Item 19.
|
Exhibits
|
88
|
|
·
|
the offshore drilling market, including supply and demand, utilization rates, dayrates, customer drilling programs, commodity prices, effects of new rigs and drillships on the market and effects of declines in commodity prices and downturn in global economy on market outlook for our various geographical operating sectors and classes of rigs and drillships;
|
|
·
|
hazards inherent in the offshore drilling industry and marine operations causing personal injury or loss of life, severe damage to or destruction of property and equipment, pollution or environmental damage, claims by third parties or customers and suspension of operations;
|
|
·
|
customer contracts, including contract backlog, contract commencements, contract terminations, contract option exercises, contract revenues, contract awards and rig and drillship mobilizations, performance provisions, newbuildings, upgrades, shipyard and other capital projects, including completion, delivery and commencement of operations dates, expected downtime and lost revenue;
|
|
·
|
political and other uncertainties, including political unrest, risks of terrorist acts, war and civil disturbances, piracy, significant governmental influence over many aspects of local economies, seizure, nationalization or expropriation of property or equipment;
|
|
·
|
repudiation, nullification, termination, modification or renegotiation of contracts;
|
|
·
|
limitations on insurance coverage, such as war risk coverage, in certain areas;
|
|
·
|
foreign and U.S. monetary policy 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, including potential limitations on drilling activity;
|
|
·
|
changing taxation policies and other forms of government regulation and economic conditions that are beyond our control;
|
|
·
|
the level of expected capital expenditures and the timing and cost of completion of capital projects;
|
|
·
|
our ability to successfully employ both our existing and newbuilding drilling units, procure or have access to financing, ability to comply with loan covenants, liquidity and adequacy of cash flow for our obligations;
|
|
·
|
continued borrowing availability under our debt agreements and compliance with the covenants contained therein;
|
|
·
|
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;
|
|
·
|
factors affecting our results of operations and cash flow from operations, including revenues and expenses, uses of excess cash, including debt retirement, dividends, timing and proceeds of asset sales, tax matters, changes in tax laws, treaties and regulations, tax assessments and liabilities for tax issues, legal and regulatory matters, including results and effects of legal proceedings, customs and environmental matters, insurance matters, debt levels, including impacts of the financial and credit crisis;
|
|
·
|
the effects of accounting changes and adoption of accounting policies;
|
|
·
|
recruitment and retention of personnel; and
|
|
·
|
other important factors described in "Item 3. Key Information—D. Risk factors."
|
Ocean Rig ASA
(predecessor)
|
Ocean Rig UDW Inc.
(successor)
|
|||||||||||||||||||||||
(U.S. Dollars in
|
As of May 14, | Year Ended December 31, | ||||||||||||||||||||||
thousands)
|
2008
|
2008
|
2009
|
2010
|
2011
|
2012
|
||||||||||||||||||
Income statement data: | ||||||||||||||||||||||||
Total revenues
|
99,172 | 218,663 | 388,122 | 405,712 | 699,649 | 941,903 | ||||||||||||||||||
Drilling rigs and drillships operating expenses
|
48,144 | 86,229 | 133,256 | 119,369 | 281,833 | 563,583 | ||||||||||||||||||
Goodwill impairment
|
- | 761,729 | - | - | - | - | ||||||||||||||||||
Loss on disposals
|
- | - | - | 1,458 | 754 | 133 | ||||||||||||||||||
Depreciation and amortization
|
19,367 | 45,432 | 75,348 | 75,092 | 162,532 | 224,479 | ||||||||||||||||||
Legal settlements and other, net
|
- | - | - | - | - | 4,524 | ||||||||||||||||||
General and administrative expenses
|
12,140 | 15,052 | 20,423 | 20,566 | 46,718 | 83,647 | ||||||||||||||||||
Total operating expenses
|
79,651 | 908,442 | 229,027 | 216,485 | 491,837 | 876,366 | ||||||||||||||||||
|
||||||||||||||||||||||||
Operating income/(loss)
|
19,521 | (689,779 | ) | 159,095 | 189,227 | 207,812 | 65,537 | |||||||||||||||||
Interest and finance costs
|
(41,661 | ) | (71,692 | ) | (46,120 | ) | (8,418 | ) | (63,752 | ) | (116,427 | ) | ||||||||||||
Interest income
|
381 | 3,033 | 6,259 | 12,464 | 9,810 | 553 | ||||||||||||||||||
Gain/(loss) on interest rate swaps
|
- | - | 4,826 | (40,303 | ) | (33,455 | ) | (36,974 | ) | |||||||||||||||
Other income/(expense)
|
- | (1,710 | ) | 4,491 | 2,227 | 2,311 | (1,068 | ) | ||||||||||||||||
Total finance expenses, net
|
(41,280 | ) | (70,369 | ) | (30,544 | ) | (34,030 | ) | (85,086 | ) | (153,916 | ) | ||||||||||||
|
||||||||||||||||||||||||
Income/(loss) before income taxes
|
(21,759 | ) | (760,148 | ) | 128,551 | 155,197 | 122,726 | (88,379 | ) | |||||||||||||||
Income/(loss) taxes
|
(1,637 | ) | (2,844 | ) | (12,797 | ) | (20,436 | ) | (27,428 | ) | (43,957 | ) | ||||||||||||
Equity in income/(loss) of investee
|
- | (1,055 | ) | - | - | - | - | |||||||||||||||||
Net income/(loss)
|
(23,396 | ) | (764,047 | ) | 115,754 | 134,761 | 95,298 | (132,336 | ) | |||||||||||||||
Less: Net income attributable to non controlling interest
|
- | (1,800 | ) | - | - | - | - | |||||||||||||||||
Net income/(loss)
|
(23,396 | ) | $ | (765,847 | ) | $ | 115,754 | $ | 134,761 | $ | 95,298 | $ | (132,336 | ) | ||||||||||
Earnings/ (loss) per common share, basic and diluted
|
(0.14 | ) | $ | (7.43 | ) | $ | 1.12 | $ | 1.30 | $ | 0.72 | $ | (1.00 | ) | ||||||||||
Weighted average number of common shares, basic and diluted
|
162,171,380 | 103,125,000 | 103,125,000 | 103,908,279 | 131,696,928 | 131,696,935 |
Ocean Rig ASA
(predecessor)
|
Ocean Rig UDW Inc.
(successor)
|
|||||||||||||||||||||||
(U.S. Dollars in
|
As of May 14,
|
As of December 31,
|
||||||||||||||||||||||
thousands)
|
2008
|
2008
|
2009
|
2010
|
2011
|
2012
|
||||||||||||||||||
Balance sheet data:
|
||||||||||||||||||||||||
Cash and cash equivalents
|
- | 272,940 | 234,195 | 95,707 | 250,878 | 317,366 | ||||||||||||||||||
Other current assets
|
96,471 | 93,379 | 324,363 | 576,299 | 245,531 | 279,768 | ||||||||||||||||||
Total current assets
|
96,471 | 366,319 | 558,558 | 672,006 | 496,409 | 597,134 | ||||||||||||||||||
Drilling rigs, drillships, machinery and equipment, net
|
1,132,867 | 1,377,359 | 1,317,607 | 1,249,333 | 4,538,838 | 4,399,462 | ||||||||||||||||||
Intangible assets, net
|
- | 13,391 | 11,948 | 10,506 | 9,062 | 7,619 | ||||||||||||||||||
Other non current assets
|
- | 3,612 | 43,480 | 523,363 | 216,121 | 228,074 | ||||||||||||||||||
Advances for rigs and drillships under construction
|
- | - | 1,178,392 | 1,888,490 | 754,925 | 992,825 | ||||||||||||||||||
Total assets
|
1,229,338 | 1,760,681 | 3,109,985 | 4,343,698 | 6,015,355 | 6,225,114 | ||||||||||||||||||
Current liabilities, including current portion of long term debt
|
538,679 | 885,039 | 682,287 | 667,918 | 427,557 | 505,665 | ||||||||||||||||||
Total long term debt, excluding current portion
|
281,307 | 788,314 | 662,362 | 696,986 | 2,525,599 | 2,683,630 | ||||||||||||||||||
Other non current liabilities
|
2,470 | 63,697 | 64,219 | 97,712 | 63,743 | 127,304 | ||||||||||||||||||
Total liabilities
|
822,456 | 1,737,050 | 1,408,868 | 1,462,616 | 3,016,899 | 3,316,599 | ||||||||||||||||||
Stockholders' equity
|
406,882 | 23,631 | 1,701,117 | 2,881,082 | 2,998,456 | 2,908,515 | ||||||||||||||||||
Total liabilities and stockholders' equity
|
$ | 1,229,338 | $ | 1,760,681 | $ | 3,109,985 | $ | 4,343,698 | 6,015,355 | $ | 6,225,114 |
Ocean Rig ASA
(predecessor)
|
Ocean Rig UDW Inc.
(successor)
|
|||||||||||||||||||||||
(U.S. Dollars in
|
January 1,
|
Year Ended December 31,
|
||||||||||||||||||||||
thousands, except
|
2008 to May
|
|||||||||||||||||||||||
for operating data)
|
14, 2008 | 2008 | 2009 | 2010 | 2011 | 2012 | ||||||||||||||||||
Cash flow data:
|
||||||||||||||||||||||||
Net cash provided by / (used in):
|
||||||||||||||||||||||||
Operating activities
|
$ | (29,089 | ) | $ | 21,119 | $ | 211,075 | $ | 221,798 | $ | 270,662 | $ | 278,303 | |||||||||||
Investing activities
|
(10,463 | ) | (1,020,673 | ) | (146,779 | ) | (1,441,347 | ) | (1,561,501 | ) | (320,469 | ) | ||||||||||||
Financing activities
|
8,550 | 1,257,390 | (103,041 | ) | 1,081,061 | 1,446,010 | 108,654 | |||||||||||||||||
Other financial data
|
||||||||||||||||||||||||
EBITDA (1)
|
38,888 | (648,912 | ) | 243,760 | 226,243 | 339,200 | 251,974 | |||||||||||||||||
Cash paid for interest
|
22,628 | 23,103 | 51,093 | 43,203 | 32,164 | 73,219 | ||||||||||||||||||
Capital expenditures
|
(10,463 | ) | (16,584 | ) | (14,152 | ) | (6,834 | ) | (78,480 | ) | (97,869 | ) | ||||||||||||
Payments for drillships under construction
|
- | - | (130,832 | ) | (705,022 | ) | (1,864,862 | ) | (212,185 | ) | ||||||||||||||
Operating data, when on hire
|
||||||||||||||||||||||||
Operating units
|
2 | 2 | 2 | 2 | 6 | 6 |
Ocean Rig ASA
(predecessor)
|
Ocean Rig UDW Inc. (successor)
|
|||||||||||||||||||||||
January 1,
|
||||||||||||||||||||||||
(U.S. Dollars in
|
2008 to May
|
Year Ended December 31,
|
||||||||||||||||||||||
thousands)
|
14, 2008 | 2008 | 2009 | 2010 | 2011 | 2012 | ||||||||||||||||||
EBITDA reconciliation
|
||||||||||||||||||||||||
Net income / (loss)
|
(23,396 | ) | $ | (765,847 | ) | $ | 115,754 | $ | 134,761 | $ | 95,298 | (132,336 | ) | |||||||||||
Add: Depreciation and amortization
|
19,367 | 45,432 | 75,348 | 75,092 | 162,532 | 224,479 | ||||||||||||||||||
Add: Net interest expense / income
|
41,280 | 68,659 | 39,861 | (4,046 | ) | 53,942 | 115,874 | |||||||||||||||||
Add: Income taxes
|
1,637 | 2,844 | 12,797 | 20,436 | 27,428 | 43,957 | ||||||||||||||||||
EBITDA
|
38,888 | $ | (648,912 | ) | $ | 243,760 | $ | 226,243 | $ | 339,200 | 251,974 |
|
·
|
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.
|
|
·
|
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;
|
|
·
|
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; and
|
|
·
|
we may be unable to raise the funds necessary to repurchase the 6.50% senior secured notes due 2017, or our Senior Secured Notes, issued by Drill Rigs Holdings Inc., our wholly-owned subsidiary, or Drill Rigs Holdings, in September 2012 tendered to Drill Rigs Holdings if there is a change of control or event of loss or in connection with an asset sale offer, which would constitute a default under the indenture governing the Senior Secured Notes.
|
|
·
|
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 drilling units 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 our restricted subsidiaries under the indenture governing our Senior Secured Notes;
|
|
·
|
change the management and/or ownership of our drilling units;
|
|
·
|
enter into transactions with affiliates;
|
|
·
|
transfer or sell assets;
|
|
·
|
amend, modify or change our organizational documents;
|
|
·
|
make capital expenditures; and
|
|
·
|
compete effectively to the extent our competitors are subject to less onerous restrictions.
|
|
·
|
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 drillships;
|
|
·
|
identify and consummate acquisitions or joint ventures;
|
|
·
|
enhance our customer base;
|
|
·
|
locate and retain suitable personnel for our fleet;
|
|
·
|
manage our expansion; and
|
|
·
|
obtain required financing on acceptable terms.
|
|
·
|
prevailing level of drilling services contract dayrates;
|
|
·
|
general economic and market conditions affecting the offshore contract drilling industry, including competition from other offshore contract drilling companies;
|
|
·
|
types, sizes and ages of drilling units;
|
|
·
|
supply and demand for drilling units;
|
|
·
|
costs of newbuildings;
|
|
·
|
governmental or other regulations; and
|
|
·
|
technological advances.
|
|
·
|
actual or anticipated variations in our operating results;
|
|
·
|
changes in our cash flow, EBITDA or earnings estimates;
|
|
·
|
changes in the price of oil;
|
|
·
|
publication of research reports about us or the industry in which we operate;
|
|
·
|
increases in market interest rates that may lead purchasers of common shares to demand a higher expected yield which, would mean our share price would fall;
|
|
·
|
changes in applicable laws or regulations, court rulings and enforcement and legal actions;
|
|
·
|
changes in market valuations of similar companies;
|
|
·
|
announcements by us or our competitors of significant contracts, acquisitions or capital commitments;
|
|
·
|
adverse market reaction to any increased indebtedness we incur in the future;
|
|
·
|
additions or departures of key personnel;
|
|
·
|
actions by institutional stockholders;
|
|
·
|
speculation in the press or investment community;
|
|
·
|
terrorist attacks;
|
|
·
|
economic and regulatory trends; and
|
|
·
|
general market conditions.
|
|
·
|
authorizing our board of directors to issue "blank check" preferred shares without shareholder 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 common shares entitled to vote generally in the election of directors;
|
|
·
|
limiting the persons who may call special meetings of shareholders ; and
|
|
·
|
establishing advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted on by shareholders at shareholder meetings.
|
|
·
|
prior to the date of the transaction in which the person became an interested shareholder, our board of directors approved either the business combination or the transaction which resulted in the shareholder becoming an interested shareholder;
|
|
·
|
upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of our voting stock outstanding at the time the transaction commenced;
|
|
·
|
at or subsequent to the date of the transaction that resulted in the shareholder becoming an interested shareholder, the business combination is approved by the board of directors and authorized at an annual or special meeting of shareholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested shareholder; or
|
|
·
|
the shareholder became an interested shareholder prior to the consummation of our initial public offering under the Securities Act.
|
Water
Depth to
the
Wellhead
(ft)
|
Drilling
Depth to
the
Oil Field
(ft)
|
|||||||||||||
Year Built or
Scheduled
Delivery/
Generation
|
||||||||||||||
Maximum
Dayrate
|
Drilling
Location
|
|||||||||||||
Drilling Unit
|
Customer
|
Expected Contract Term(1)
|
||||||||||||
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.
|
Q4 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
|
$584,450(5)
|
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
|
|||||||||||
_____________________
|
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 | % | - |
|
·
|
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: 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.
|
Intangible assets/liabilities
|
Years
|
|
|
Tradenames
|
10
|
|
|
Software
|
10
|
Year Ended December 31, 2011
|
Year Ended December 31, 2012
|
Change
|
Percentage Change
|
|||||||||||||
REVENUES:
|
||||||||||||||||
Total revenues
|
699,649 | 941,903 | 242,254 | 34.6 | % | |||||||||||
EXPENSES:
|
||||||||||||||||
Drilling rigs and drillships operating expenses
|
281,833 | 563,583 | 281,750 | 100.0 | % | |||||||||||
Depreciation
|
162,532 | 224,479 | 61,947 | 38.1 | % | |||||||||||
Loss on disposals
|
754 | 133 | (621 | ) | -82.4 | % | ||||||||||
General and administrative expenses
|
46,718 | 83,647 | 36,929 | 79.0 | % | |||||||||||
Legal settlements and other, net
|
- | 4,524 | 4,524 | - | ||||||||||||
Operating income
|
207,812 | 65,537 | (142,275 | ) | -68.5 | % | ||||||||||
OTHER INCOME/(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(63,752 | ) | (116,427 | ) | (52,675 | ) | 82.6 | % | ||||||||
Interest income
|
9,810 | 553 | (9,257 | ) | -94.4 | % | ||||||||||
Loss on interest rate swaps
|
(33,455 | ) | (36,974 | ) | (3,519 | ) | 10.5 | % | ||||||||
Other, net
|
2,311 | (1,068 | ) | (3,379 | ) | -146.2 | % | |||||||||
Total other income/(expenses),net
|
(85,086 | ) | (153,916 | ) | (68,830 | ) | 80.9 | % | ||||||||
Net income/(loss) before taxes
|
122,726 | (88,379 | ) | (211,105 | ) | -172.0 | % | |||||||||
Income Taxes
|
(27,428 | ) | (43,957 | ) | (16,529 | ) | 60.3 | % | ||||||||
Net Income/(Loss)
|
95,298 | (132,336 | ) | (227,634 | ) | -238.9 | % |
(U.S. Dollars in thousands)
|
|
Year Ended December 31, 2010
|
|
|
Year Ended December 31, 2011
|
|
|
Change
|
|
|
Percentage Change
|
|||||
REVENUES:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Total revenues
|
|
|
405,712
|
|
|
|
699,649
|
|
|
|
293,937
|
|
|
|
72.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXPENSES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Drilling rigs and drillships operating expenses
|
|
|
119,369
|
|
|
|
281,833
|
|
|
|
162,464
|
|
|
|
136.1
|
%
|
Depreciation and amortization
|
|
|
75,092
|
|
|
|
162,532
|
|
|
|
87,440
|
|
|
|
116.4
|
%
|
Loss on disposals
|
|
|
1,458
|
|
|
|
754
|
|
|
|
(704
|
)
|
|
|
(48.3
|
%)
|
General and administrative expenses
|
|
|
20,566
|
|
|
46,718
|
|
|
|
26,152
|
|
|
|
127.2
|
%
|
|
Operating income
|
|
|
189,227
|
|
|
|
207,812
|
|
|
|
18,585
|
|
|
|
9.8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OTHER INCOME / (EXPENSES):
|
|
|
||||||||||||||
Interest and finance costs
|
|
|
(8,418)
|
(63,752)
|
|
|
55,334
|
|
|
657.3
|
%
|
|||||
Interest income
|
|
|
12,464
|
|
|
|
9,810
|
|
|
|
(2,654
|
)
|
|
|
(21.3
|
%)
|
Loss on interest rate swaps
|
|
|
(40,303
|
)
|
|
|
(33,455
|
)
|
|
|
6,848
|
|
|
|
(17.0
|
%)
|
Other, net
|
|
|
2,227
|
2,311
|
84
|
3.8
|
%
|
|||||||||
Total other income/(expenses), net
|
|
|
(34,030)
|
(85,086)
|
51,056
|
150.0
|
%
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income/(loss) before taxes
|
|
|
155,197
|
|
|
|
122,726
|
|
|
|
(32,471
|
)
|
|
|
(20.9
|
%)
|
Income taxes
|
|
|
(20,436
|
)
|
|
|
(27,428
|
)
|
|
|
(6,992
|
)
|
|
|
34.2
|
%
|
Net Income/(Loss)
|
|
$
|
134,761
|
|
|
$
|
95,298
|
|
|
$
|
(39,463
|
)
|
|
|
(29.3
|
%)
|
|
(a)
|
Drill Rigs Holdings Inc. is a private limited company organized under the laws of theMarshall Islands. It is registered under registration number 32563 and the address of itsregistered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro,Marshall Islands MH 96960.
|
|
(b)
|
Ocean Rig 1 Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 32564 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(c)
|
Ocean Rig 2 Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 32566 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(d)
|
Ocean Rig 1 Shareholders Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 32565 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(e)
|
Ocean Rig 2 Shareholders Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 32567 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(f)
|
Ocean Rig 1 Greenland Operations Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 42634 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(g)
|
Ocean Rig Falkland Operations Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 49548 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(h)
|
Drill Rigs Operations Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 49395 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(i)
|
Ocean Rig EG Operations Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 53660 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
|
(j)
|
Ocean Rig Norway Operations Inc. is a private limited company organized under the laws of Marshall Islands. It is registered under registration number 53753 and the address of its registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
|
Year Ended
|
||||||||
(U.S. Dollars in thousands)
|
2011
|
2012
|
||||||
Total revenue
|
333,889 | 313,479 | ||||||
EBITDA(1)
|
238,073 | 34,160 | ||||||
Total assets
|
1,342,648 | 1,271,829 | ||||||
Total debt, net of financing fees
|
(519,731 | ) | (781,001 | ) | ||||
Shareholders' equity
|
(730,198 | ) | (337,086 | ) | ||||
Total cash and cash equivalents
|
41,669 | 62,429 | ||||||
Capital expenditures (2)
|
(20,065 | ) | (27,908 | ) |
(1)
|
EBITDA represents net income before interest, taxes, depreciation and amortization. EBITDA is a non-U.S. GAAP measure and 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 or other U.S. GAAP measures, 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 we measure our operations and efficiency. EBITDA is also used by various of our lenders as a measure of our compliance with certain loan covenants and because we believe that it presents useful information to investors regarding a company's ability to service and/or incur indebtedness.
|
(2)
|
Capital expenditures represent fixed assets improvements excluding items expensed for the Leiv Eiriksson and the Eirik Raude class surveys incurred during the fiscal years ended December 31, 2011 and 2012, amounting to $15.3 million and $65.5 million, respectively.
|
Year Ended
|
||||||||
(U.S. Dollars in thousands)
|
2011
|
2012
|
||||||
EBITDA reconciliation
|
|
|
||||||
Net income
|
132,904 | (75,875 | ) | |||||
Interest and finance costs
|
42,888 | 36,588 | ||||||
Interest income
|
(17,337 | ) | (6,137 | ) | ||||
Depreciation
|
75,212 | 73,322 | ||||||
Income taxes
|
4,406 | 6,262 | ||||||
|
||||||||
EBITDA
|
238,073 | 34,160 | ||||||
|
For the Year Ended December 31, 2012
|
||||||||||||||||||||
(U.S. Dollars in thousands)
|
Issuer
|
Issuer
Subs
Guarantor
|
Non-guarantors
|
Ocean Rig 1 Inc./
Leiv Eiriksson
|
Ocean Rig 2 Inc./
Eirik Raude
|
|||||||||||||||
EBITDA reconciliation
|
|
|
|
|
|
|||||||||||||||
Net income
|
(48,535 | ) | (27,340 | ) | (56,461 | ) | 25,316 | (51,212 | ) | |||||||||||
Depreciation
|
109 | 73,213 | 151,157 | 34,697 | 37,073 | |||||||||||||||
Interest and finance costs
|
36,555 | 33 | 79,840 | 15 | 19 | |||||||||||||||
Interest income
|
(2,256 | ) | (3,881 | ) | 5,583 | (529 | ) | (3,352 | ) | |||||||||||
Income Taxes
|
— | 6,262 | 37,695 | (989 | ) | 7,251 | ||||||||||||||
|
||||||||||||||||||||
EBITDA(1)
|
(14,127 | ) | 48,287 | 217,814 | 58,510 | (10,221 | ) | |||||||||||||
|
Obligations
|
|
Total
|
|
|
Less than 1 year
|
|
|
1-3 years
|
|
|
3-5 years
|
|
|
More than 5 years
|
|
|||||
(U.S. Dollars in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Drillships under construction (1)
|
|
|
1,566,876
|
|
|
|
1,179,776
|
|
|
|
387,100
|
|
|
|
-
|
|
|
|
-
|
|
Retirement Plan Benefits (2)
|
|
|
2,955
|
|
|
|
93
|
|
|
|
270
|
|
|
|
401
|
|
|
|
2,191
|
|
Operating leases (3)
|
|
|
5,014
|
|
|
|
2,774
|
|
|
|
1,818
|
|
|
|
422
|
|
|
|
-
|
|
Loan payments (4)
|
|
|
2,907,500
|
|
|
|
176,667
|
|
|
|
353,333
|
|
|
|
2,020,000
|
|
|
|
357,500
|
|
Interest payments (5)
|
|
|
747,585
|
|
|
|
163,342
|
|
|
|
339,375
|
|
|
|
201,949
|
|
|
|
42,919
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
5,229,930
|
|
|
|
1,522,652
|
|
|
|
1,081,896
|
|
|
|
2,222,772
|
|
|
|
402,610
|
|
(1)
|
The figure includes contracted purchase obligations only.
|
(2)
|
We have three defined benefit plans for our employees managed and funded through Norwegian life insurance companies at December 31, 2012. The pension plans covered 44 employees by December 31, 2012. Pension liabilities and pension costs are calculated based on the actuarial cost method as determined by an independent third party actuary.
|
(3)
|
The Company has operating leases mostly relating to premises the most significant being its offices in Stavanger, Rio de Janeiro, Jersey and Aberdeen.
|
(4)
|
Includes $500 million in aggregate principal amount of 9.5% senior unsecured notes and $800 million in aggregate principal amount of 6.5% senior secured notes.
|
(5)
|
Based on assumed interest rates ranging from 4.14% to 9.5%.
|
Directors and executive officers of Ocean Rig UDW Inc.(1)
|
||
Name
|
Age
|
Position
|
George Economou
|
60
|
Chairman of the Board, President, Chief Executive Officer and Class A Director
|
Michael Gregos
|
41
|
Class B Director
|
Trygve Arnesen
|
55
|
Class C Director
|
Savvas D. Georghiades
|
62
|
Class C Director
|
Prokopios (Akis) Tsirigakis
|
58
|
Class B Director
|
Anthony Kandylidis
|
35
|
Executive Vice President
|
Gilles Bocabarteille
|
45
|
Senior Vice President of Technical and Engineering
|
Mark Bessell(2)
|
48
|
Senior Vice President of Operations
|
Principal officers of Ocean Rig UDW Inc.'s operating subsidiaries(3)
|
||
Name
|
Age
|
Position
|
Jan Rune Steinsland(4)
|
53
|
Chief Financial Officer
|
|
·
|
each person or entity that we know beneficially owns 5% or more of our common stock;
|
|
·
|
each of our executive officers and directors; and
|
|
·
|
all our executive officers and directors as a group.
|
Name and Address of Beneficial Owner(1)
|
|
Number of
Shares Owned
|
|
Percent of Class(2)
|
|
Executive Officers and Directors:
|
|
|
|
|
|
George Economou(3)
|
|
5,393,289
|
|
4.1%
|
|
Michael Gregos
|
|
-
|
|
*
|
|
Trygve Arnesen
|
|
-
|
|
*
|
|
Savvas D. Georghiades
|
|
-
|
|
*
|
|
Prokopios (Akis) Tsirigakis
|
|
-
|
|
*
|
|
Anthony Kandylidis(4)
|
1,684,512
|
1.3%
|
|||
Gilles Bocabarteille |
-
|
* | |||
Mark Bessell
|
-
|
*
|
|||
Jan Rune Steinsland
|
|
-
|
|
*
|
|
Executive Officers and Directors as a Group
|
|
7,112,466
|
|
5.4%
|
|
5% Beneficial Owners:
|
|
|
|
|
|
DryShips Inc.(5)
|
|
78,301,755
|
|
59.4%
|
|
(1)
|
Unless otherwise indicated, the business address of each beneficial owner identified is 10 Skopa Street, Tribune House, 2nd Floor, Office 202, CY 1075, Nicosia, Cyprus.
|
(2)
|
Based on 131,725,128 common shares outstanding as of March 20, 2013. |
(3)
|
George Economou, our Chairman, President and Chief Executive Officer, may be deemed to beneficially own 5,061,430 of these shares through Sphinx Investment Corp., a Marshall Islands corporation controlled by Mr. Economou. Mr. Economou may be deemed to beneficially own 79,525 of these shares through Elios Investments Inc., 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 Mr. Economou's family. Mr. Economou may be deemed to beneficially own 145,128 of these shares through Entrepreneurial Spirit Holdings Inc., a Liberian corporation that is wholly owned by the Foundation. Mr. Economou may be deemed to beneficially own 105,357 of these shares through Fabiana Services S.A., a Marshall Islands corporation, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to own 1,849 of these shares through Goodwill Shipping Company Limited, a Malta corporation, of which Mr. Economou is the controlling person.
|
(4)
|
Anthony Kandylidis, our Executive Vice President, may be deemed to beneficially own all of these shares through Skidrow Investments Limited, a Marshall Islands corporation controlled by Mr. Kandylidis.
|
(5)
|
DryShips is our parent company and a reporting company under the Exchange Act. George Economou, our Chairman, President and Chief Executive Officer, is also the Chairman, President and Chief Executive Officer of DryShips. Information with respect to DryShips and Mr. Economou and their relations to us is discussed under "B.—Related Party Transactions." The business address of DryShips Inc. is 74-76 V. Ipeirou Street, GR 15125 Amaroussion, Greece. In October 2012, DryShips pledged 7,800,000 of these shares as additional collateral under certain of its credit facilities. The terms of the share pledge expire on June 30, 2013. In March 2013, DryShips pledged 1,602,500 of these shares as additional collateral under certain of its credit facilities.
|
For the Year Ended
|
|
Low (NASDAQ)
|
|
|
High (NASDAQ)
|
|
|
Low(1) (OTC)
|
|
|
High(1) (OTC)
|
|
||||
December 31, 2010
|
-
|
-
|
99.00(2)
|
103.00(2)
|
||||||||||||
December 31, 2011
|
|
$ |
11.96(3)
|
|
$ |
16.00(3)
|
|
|
72.00
|
|
|
|
125.00
|
|
||
December 31, 2012
|
$ |
11.75
|
$ |
18.17
|
73.00
|
102.00
|
||||||||||
For the Quarter Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2011
|
|
|
-
|
|
|
|
-
|
|
|
|
104.00
|
|
|
|
125.00
|
|
June 30, 2011
|
|
|
-
|
|
|
|
-
|
|
|
|
99.00
|
|
|
|
118.00
|
|
September 30, 2011
|
|
|
-
|
|
|
|
-
|
|
|
|
79.50
|
|
|
|
97.00
|
|
December 31, 2011
|
|
$
|
$11.96(3)
|
|
$ |
16.00(3)
|
|
|
72.00
|
|
|
|
90.00
|
|
||
March 31, 2012
|
$ |
11.75
|
$ |
17.86
|
73.00
|
97.00
|
||||||||||
June 30, 2012
|
$ |
13.04
|
$ |
18.17
|
78.00
|
102.00
|
||||||||||
September 30, 2012
|
$ |
13.59
|
$ |
18.16
|
88.00
|
101.00
|
||||||||||
December 31, 2012
|
$ |
14.69
|
$ |
16.51
|
82.00
|
94.00
|
For the Month Ended
|
|
|
|
|
||||||||||||
September 2012
|
$ | 16.31 | $ | 18.16 | 92.50 | 101.00 | ||||||||||
October 2012
|
$ | 15.18 | $ | 16.50 | 94.00 | 94.00 | ||||||||||
November 2012
|
$ | 14.69 | $ | 16.51 | - | (5) | - | (5) | ||||||||
December 2012
|
$ | 14.72 | $ | 15.75 | 82.00 | 82.00 | ||||||||||
January 2013
|
$ | 15.00 | $ | 17.47 | - | (5) | - | (5) | ||||||||
February 2013
|
$ | 17.57 | $ | 17.71 | - | (5) | - | (5) | ||||||||
March 2013 | $ | 13.76 | $ | 15.73 | - | (5) | - | (5) |
|
(1)
|
As reported in Norwegian Kroner. As of March 21, 2013, the U.S. Dollar/Norwegian Kroner exchange rate was $1.00/NOK5.840.
|
|
(2)
|
For the period from December 15, 2010, the date on which our common shares began trading on Norwegian OTC Market, until the end of the period.
|
|
(3)
|
For the period from October 6, 2011, the date on which our common shares began "regular way" trading on the NASDAQ Global Select Market, until the end of the period.
|
|
(4)
|
Through March 20, 2013.
|
|
(5)
|
There were no trades during this period.
|
|
·
|
at least 75% of the corporation's 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 corporation 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 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 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.
|
|
·
|
fails to provide an accurate taxpayer identification number;
|
|
·
|
is notified by the Internal Revenue Service that he has failed to report all interest or dividends required to be shown on his federal income tax returns; or
|
|
·
|
in certain circumstances, fails to comply with applicable certification requirements.
|
|
1.
|
Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
|
|
2.
|
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and
|
|
3.
|
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company's assets that could have a material effect on the financial statements.
|
|
|
2011
|
|
|
2012
|
|
||
|
|
(U.S. Dollars in thousands)
|
|
|||||
|
|
|
|
|
|
|
||
|
|
|
|
|
|
|
||
Audit fees
|
|
$
|
1,591
|
|
|
$
|
751
|
|
Audit-related fees
|
|
|
-
|
|
|
|
-
|
|
Tax fees
|
|
|
75
|
|
|
|
179
|
|
All other fees
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
Total fees
|
|
$
|
1,666
|
|
|
$
|
930
|
|
|
●
|
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 approves 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 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 bylaws provide that shareholders must give us between 150 and 180 days advance notice to properly introduce any business at a meeting of shareholders.
|
Exhibit Number
|
Description
|
|
|
|
|
1.1
|
Second Amended and Restated Articles of Incorporation of Ocean Rig UDW Inc., incorporated by reference to exhibit 3.1 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.
|
|
|
|
|
1.2
|
Second Amended and Restated Bylaws of Ocean Rig UDW Inc., incorporated by reference to exhibit 3.2 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.
|
|
|
|
|
1.3
|
Certificate of Designations of Rights, Preferences and Privileges of Series A Participating Preferred Stock of Ocean Rig UDW Inc., incorporated by reference to exhibit 4.3 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.
|
|
|
|
|
2.1
|
Form of Stock Certificate, incorporated by reference to exhibit 4.1 to the Registration Statement on Form F-4 of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 17, 2011.
|
|
|
|
|
2.2
|
Amended and Restated Stockholder Rights Agreement, dated June 3, 2011, incorporated by reference to exhibit 4.2 to the Registration Statement on Form F-4/A of Ocean Rig UDW Inc. (Registration No. 333-175940), filed with the SEC on August 1, 2011.
|
|
2.3
|
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.
|
|
2.4
|
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.
|
|
2.5
|
Supplemental Indenture, dated as of January 23, 2013, by and among Drill Rigs Holdings Inc., Ocean Rig UDW Inc., as Guarantor, the other Guarantors, and U.S. Bank National Association, as Trustee, 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.
|
|
2.6
|
Second Supplemental Indenture, dated as of January 30, 2013, amending and supplementing the Indenture, dated as of September 20, 2012, as amended 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.
|
2.7
|
Third Supplemental Indenture, dated as of March 15, 2013, amending and supplementing the Indenture, dated as of September 20, 2012, as amended 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.
|
|
4.1
|
Drillship Master Agreement between DryShips Inc. and Samsung Heavy Industries Co., Ltd., incorporated by reference to exhibit 10.1 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.
|
|
|
|
|
4.2
|
Novation Agreement between Samsung Heavy Industries Co., Ltd., DryShips Inc. and Ocean Rig UDW Inc., incorporated by reference to exhibit 10.2 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.
|
|
|
|
|
4.3
|
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 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.
|
|
|
|
|
4.4
|
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, incorporated by reference to exhibit 4.4 to 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 14, 2012.
|
|
4.5
|
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.
|
|
4.6
|
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.
|
|
|
|
|
4.7
|
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.
|
|
4.8
|
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.
|
|
|
|
|
4.9
|
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.
|
|
|
|
|
4.10
|
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 10.18 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.
|
|
|
|
4.11
|
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 10.19 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.
|
|
|
|
|
4.12
|
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.
|
|
|
|
|
4.13
|
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.
|
|
|
|
|
4.14
|
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.
|
|
|
|
|
4.15
|
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.
|
|
|
|
|
4.16
|
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.
|
|
|
|
|
4.17
|
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.
|
|
|
|
4.18
|
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.
|
|
|
|
|
4.19
|
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.
|
|
|
|
|
4.20
|
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.
|
|
|
|
|
4.21
|
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.
|
|
|
|
|
4.22
|
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.
|
|
|
|
|
4.23
|
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.
|
|
|
|
|
4.24
|
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.
|
|
|
|
4.25
|
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.
|
|
|
|
|
4.26
|
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.
|
|
|
|
|
4.27
|
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.
|
|
|
|
|
4.28
|
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.
|
|
|
|
|
4.29
|
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.
|
|
|
|
|
4.30
|
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.
|
|
4.31
|
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.
|
|
4.32
|
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.
|
|
4.33
|
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.
|
4.34
|
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.
|
|
4.35
|
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.
|
|
4.36
|
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.
|
|
|
|
|
4.37
|
Global Services Agreement, dated December 1, 2010, by and between DryShips Inc. and Cardiff Marine Inc., incorporated by reference to exhibit 10.38 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.
|
|
4.38
|
Termination Agreement, effective 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.
|
|
4.39
|
Services Agreement, effective January 1, 2013, by and between Ocean Rig Management Inc. and Cardiff Drilling Inc.
|
|
|
|
|
4.40
|
Consultancy Agreement, dated September 1, 2010, by and between DryShips Inc. and Vivid Finance Limited, incorporated by reference to exhibit 10.39 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.
|
|
4.41
|
Addendum No. 1, effective January 1, 2013, to the Consultancy Agreement, dated September 1, 2010, by and between Ocean Rig UDW Inc. and Vivid Finance Inc.
|
|
4.42
|
Consultancy Agreement, effective January 1, 2013, by and between Ocean Rig Management Inc. and Vivid Finance Limited.
|
|
|
|
|
4.43
|
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.
|
|
4.44
|
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.
|
|
|
|
|
8.1
|
Subsidiaries of Ocean Rig UDW 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 | |
15.2 | Consent of Independent Registered Public Accounting Firm | |
101
|
The following financial information from Ocean Rig UDW Inc.'s Annual Report on Form 20-F for the fiscal year ended December 31, 2012, formatted in Extensible Business Reporting Language (XBRL):
(1) Consolidated Balance Sheets as of December 31, 2011 and 2012;
(2) Consolidated Statements of Operations for the years ended December 31, 2010, 2011 and 2012;
(3) Consolidated Statements of Comprehensive Income for the years ended December 31, 2010, 2011 and 2012;
(4) Consolidated Statements of Stockholders' Equity for the years ended December 31, 2010, 2011 and 2012;
(5) Consolidated Statements of Cash Flows for the years ended December 31, 2010, 2011 and 2012; and
(6) Notes to Consolidated Financial Statements.
|
|
OCEAN RIG UDW INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ George Economou
|
|
Name:
|
George Economou
|
|
Title:
|
Chairman, President and
|
|
|
Chief Executive 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
|
Report of Independent Registered Public Accounting Firm (Ernst & Young AS)
|
F-4
|
Consolidated Balance Sheets as of December 31, 2011 and 2012
|
F-5
|
Consolidated Statements of Operations for the years ended December 31, 2010, 2011 and 2012
|
F-6
|
Consolidated Statements of Comprehensive Income/(Loss) for the years ended December 31, 2010, 2011 and 2012
|
F-7
|
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2010, 2011 and 2012
|
F-8
|
Consolidated Statements of Cash Flows for the years ended December 31, 2010, 2011 and 2012
|
F-9
|
Notes to Consolidated Financial Statements
|
F-10
|
|
|
December 31, 2011
|
|
|
December 31, 2012
|
|
||
ASSETS
|
|
|
|
|
|
|
||
CURRENT ASSETS:
|
|
|
|
|
|
|
||
Cash and cash equivalents
|
|
$
|
250,878
|
|
|
$
|
317,366
|
|
Restricted cash (Note 2)
|
|
|
57,060
|
|
|
|
37,321
|
|
Trade accounts receivable, net of allowance for doubtful receivables of $18,420 and $14,685.
|
|
|
123,223
|
|
|
|
148,808
|
|
Other current assets (Note 4)
|
|
|
65,248
|
|
|
|
93,639
|
|
Total current assets
|
|
|
496,409
|
|
|
|
597,134
|
|
|
|
|
|
|
|
|
|
|
FIXED ASSETS, NET:
|
|
|
|
|
|
|
|
|
Advances for drillships under construction (Note 5)
|
|
|
754,925
|
|
|
|
992,825
|
|
Drilling rigs, drillships, machinery and equipment, net (Note 6)
|
|
|
4,538,838
|
|
|
|
4,399,462
|
|
Total fixed assets, net
|
|
|
5,293,763
|
|
|
|
5,392,287
|
|
|
|
|
|
|
|
|
|
|
OTHER NON-CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
Restricted cash (Note 2)
|
|
|
125,040
|
|
|
|
155,374
|
|
Financial instruments (Note 10)
|
-
|
935
|
||||||
Intangible assets, net (Note 7)
|
|
|
9,062
|
|
|
|
7,619
|
|
Other non-current assets (Note 8)
|
|
|
91,081
|
|
|
|
71,765
|
|
Total non-current assets, net
|
|
|
225,183
|
|
|
|
235,693
|
|
Total assets
|
|
$
|
6,015,355
|
|
|
$
|
6,225,114
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
|
|
Current portion of long-term debt (Note 9)
|
|
$
|
210,166
|
|
|
$
|
169,780
|
|
Accounts payable and other current liabilities
|
|
|
37,305
|
|
|
|
69,827
|
|
Accrued liabilities
|
|
|
104,633
|
|
|
|
156,886
|
|
Deferred revenue
|
|
|
34,726
|
|
|
|
69,635
|
|
Financial instruments (Note 10)
|
|
|
40,727
|
|
|
|
39,537
|
|
Total current liabilities
|
|
|
427,557
|
|
|
|
505,665
|
|
|
|
|
|
|
|
|
|
|
NON-CURRENT LIABILITIES
|
|
|
|
|
|
|
|
|
Long term debt, net of current portion (Note 9)
|
|
|
2,525,599
|
|
|
|
2,683,630
|
|
Financial instruments (Note 10)
|
|
|
52,025
|
|
|
|
38,087
|
|
Deferred revenue
|
|
|
9,172
|
|
|
|
71,815
|
|
Pensions (Note 11)
|
2,546
|
4,057
|
||||||
Other non-current liabilities
|
|
|
-
|
|
|
|
13,345
|
|
Total non-current liabilities
|
|
|
2,589,342
|
|
|
|
2,810,934
|
|
|
|
|
|
|
|
|
|
|
COMMITMENTS AND CONTINGENCIES (Note 17)
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS' EQUITY:
|
|
|
|
|
|
|
|
|
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2011 and 2012, nil issued and outstanding at December 31, 2011and 2012, respectively
|
|
|
-
|
|
|
|
-
|
|
Common stock, $0,01par value; 1,000,000,000 shares authorized, at December 31, 2011 and 2012, 131,696,928 and 131,725,128 issued and outstanding at December 31, 2011 and 2012, respectively (Note 12)
|
|
|
1,317
|
|
|
|
1,317
|
|
Additional paid-in capital
|
|
|
3,469,924
|
|
|
|
3,489,018
|
|
Accumulated other comprehensive loss (Note 13)
|
|
|
(51,126
|
)
|
|
|
(27,825
|
)
|
Accumulated deficit
|
|
|
(421,659
|
)
|
|
|
(553,995
|
)
|
Total stockholders' equity
|
|
|
2,998,456
|
|
|
|
2,908,515
|
|
Total liabilities and stockholders' equity
|
|
$
|
6,015,355
|
|
|
$
|
6,225,114
|
|
Year Ended December 31,
|
||||||||||||
2010 | 2011 | 2012 | ||||||||||
REVENUES: | ||||||||||||
Leasing revenue
|
|
$
|
141,211
|
|
|
$
|
112,118
|
|
|
$
|
-
|
|
Service revenue (including amortization of above market acquired drilling contracts), net
|
|
|
264,501
|
|
|
|
587,531
|
|
|
|
941,903
|
|
Total Revenues
|
|
|
405,712
|
|
|
|
699,649
|
|
|
|
941,903
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXPENSES:
|
|
|
|
|
|
|
|
|
|
|
|
|
Drilling rigs and drillships operating expenses
|
|
|
119,369
|
|
|
|
281,833
|
|
|
|
563,583
|
|
Depreciation and amortization
|
|
|
75,092
|
|
|
|
162,532
|
|
|
|
224,479
|
|
Loss on disposals
|
|
|
1,458
|
|
|
|
754
|
|
|
|
133
|
|
General and administrative expenses
|
20,566
|
|
|
|
46,718
|
83,647
|
||||||
Legal settlements and other, net (Note 17)
|
|
|
-
|
-
|
|
|
|
4,524
|
|
|||
Operating income
|
|
|
189,227
|
|
|
|
207,812
|
|
|
|
65,537
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OTHER INCOME / (EXPENSES):
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and finance costs (Note 14)
|
|
|
(8,418
|
)
|
|
|
(63,752)
|
|
|
(116,427)
|
||
Interest income
|
|
|
12,464
|
|
|
|
9,810
|
|
|
|
553
|
|
Loss on interest rate swaps (Note 10)
|
|
|
(40,303)
|
|
|
|
(33,455)
|
|
|
(36,974)
|
||
Other, net
|
|
|
2,227
|
|
|
|
2,311
|
|
|
|
(1,068)
|
|
Total other income/(expenses), net
|
|
|
(34,030
|
)
|
|
|
(85,086)
|
|
|
(153,916)
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
INCOME / (LOSS) BEFORE INCOME TAXES
|
|
|
155,197
|
|
|
|
122,726
|
|
|
|
(88,379)
|
|
Income taxes (Note 15)
|
|
|
(20,436
|
)
|
|
|
(27,428
|
)
|
|
|
(43,957)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME / (LOSS)
|
|
$
|
134,761
|
|
|
$
|
95,298
|
|
|
$
|
(132,336)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EARNINGS/ (LOSS) PER SHARE, BASIC AND DILUTED
|
|
$
|
1.30
|
|
|
$
|
0.72
|
|
$
|
(1.00)
|
|
|
WEIGHTED AVERAGE NUMBER OF COMMON SHARES, BASIC AND DILUTED (Note 12)
|
|
|
103,908,279
|
|
|
|
131,696,928
|
|
|
|
131,696,935
|
|
|
|
2010
|
2011
|
2012
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|||
Net income / (Loss)
|
|
$
|
134,761
|
|
|
$
|
95,298
|
|
$
|
(132,336)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Comprehensive income / (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized interest rate swap gains/ (losses)
|
|
|
(5,495)
|
|
|
|
3,272
|
|
|
-
|
||
Realized loss on cash flow hedges associated with capitalized interest
|
|
|
(21,523)
|
|
|
(3,272)
|
|
|
-
|
|||
Reclassification of realized losses associated with capitalized interest to Consolidated Statement of Operations
|
|
|
-
|
|
|
|
722
|
|
|
1,034
|
||
Reclassification of losses on previously designated cash flow hedges to Consolidated Statement of Operations, net
|
|
|
-
|
|
|
|
9,816
|
|
|
22,904
|
||
Actuarial gains/ (losses)
|
|
|
424
|
|
|
|
(942)
|
|
|
(637)
|
||
Other Comprehensive income/ (loss)
|
|
|
(26,594)
|
|
|
|
9,596
|
|
|
23,301
|
||
|
|
|
|
|
|
|
|
|
|
|||
Total Comprehensive income / (loss)
|
|
$
|
108,167
|
|
|
$
|
104,894
|
|
$
|
(109,035)
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock
|
Additional
Paid-in
|
Accumulated
Other
Comprehensive
|
Accumulated
|
Total
Stockholders'
|
|||||||||||||||||||
|
Shares
|
Par Value
|
Capital
|
Loss
|
Deficit
|
Equity
|
||||||||||||||||||
BALANCE, December 31, 2009
|
103,125,500 | $ | 10 | $ | 2,386,953 | $ | (34,128 | ) | $ | (651,718 | ) | $ | 1,701,117 | |||||||||||
Net income
|
- | - | - | - | 134,761 | 134,761 | ||||||||||||||||||
Other comprehensive loss
|
- | - | - | (26,594 | ) | - | (26,594 | ) | ||||||||||||||||
Share dividend
|
- | 1,021 | (1,021 | ) | - | - | - | |||||||||||||||||
Private placement
|
28,571,428 | 286 | 488,015 | - | - | 488,301 | ||||||||||||||||||
Capital contribution from DryShips Inc
|
- | - | 583,497 | - | - | 583,497 | ||||||||||||||||||
|
||||||||||||||||||||||||
BALANCE, December 31, 2010
|
131,696,928 | 1,317 | 3,457,444 | (60,722 | ) | (516,957 | ) | 2,881,082 | ||||||||||||||||
Net income
|
- | - | - | - | 95,298 | 95,298 | ||||||||||||||||||
Other comprehensive income
|
- | - | - | 9,596 | - | 9,596 | ||||||||||||||||||
Capital contribution from DryShips Inc
|
- | - | 12,480 | - | - | 12,480 | ||||||||||||||||||
BALANCE, December 31, 2011
|
131,696,928 | 1,317 | 3,469,924 | (51,126 | ) | (421,659 | ) | 2,998,456 | ||||||||||||||||
Net loss
|
- | - | - | - | (132,336 | ) | (132,336 | ) | ||||||||||||||||
Issuance of non-vested shares | 28,200 | - | - | - | - | - | ||||||||||||||||||
Amortization of stock based compensation | - | - | 613 | - | - | 613 | ||||||||||||||||||
Other comprehensive income | - | - | - | 23,301 | - | 23,301 | ||||||||||||||||||
Capital contribution from DryShips Inc | - | - | 18,481 | - | - | 18,481 | ||||||||||||||||||
BALANCE, December 31, 2012 | 131,725,128 | $ | 1,317 | $ | 3,489,018 | $ | (27,825 | ) | $ | (553,995 | ) | $ | 2,908,515 |
|
Years ended December 31,
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|||
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||
Cash Flows from Operating Activities:
|
|
|
|
|
|
|
|
|
|
|||
Net income/loss
|
|
$
|
134,761
|
|
$
|
|
95,298
|
|
|
$
|
(132,336)
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
75,092
|
|
|
|
162,532
|
|
|
|
224,479
|
|
Loss from disposal of assets
|
|
|
1,458
|
|
|
|
754
|
|
|
|
133
|
|
Commitments fees on undrawn line of credit
|
|
|
6,375
|
|
|
|
-
|
|
|
|
-
|
|
Amortization of deferred financing fees
|
|
|
-
|
|
|
|
17,778
|
|
|
|
12,944
|
|
Net amortization of fair value of acquired drilling contracts
|
|
|
1,222
|
|
|
1,170
|
|
|
|
-
|
|
|
Amortization of cash flow hedge reserve
|
|
|
(21,523)
|
|
|
9,816
|
|
|
22,904
|
|
||
Interest income on restricted cash related to drillships
|
|
|
(6,205)
|
|
|
(4,318
|
)
|
|
|
-
|
||
Change in fair value of derivatives
|
33,119
|
|
|
|
(15,114)
|
(16,063)
|
||||||
Amortization of stock based compensation
|
-
|
-
|
613
|
|||||||||
Other non cash items
|
|
|
-
|
|
|
|
12,817
|
|
|
|
16,961
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
||
Trade accounts receivable
|
|
|
41,200
|
|
|
(98,937
|
)
|
|
|
(24,040)
|
||
Other current and non-current assets
|
|
|
(4,863
|
)
|
|
|
(48,409
|
)
|
|
|
(56,938)
|
|
Deferred taxes
|
|
|
209
|
|
|
|
(209
|
)
|
|
|
-
|
|
Accounts payable and other current and non-current liabilities
|
|
|
(9,390
|
)
|
|
|
28,287
|
|
|
45,867
|
||
Pension liability
|
|
|
1,416
|
|
|
1,002
|
|
|
|
874
|
|
|
Accrued liabilities
|
|
|
5,022
|
|
|
|
59,002
|
|
|
|
52,253
|
|
Deferred revenue
|
|
|
1,805
|
|
|
|
3,693
|
|
|
|
97,552
|
|
Security deposits for derivatives
|
|
|
(37,900
|
)
|
|
|
45,500
|
|
|
33,100
|
|
|
Net Cash Provided by Operating Activities
|
|
|
221,798
|
|
|
|
270,662
|
|
|
|
278,303
|
|
Cash Flows from Investing Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Advances for drillships under construction
|
|
|
(705,022
|
)
|
|
|
(1,864,862
|
)
|
|
|
(212,185)
|
|
Down payment for drilling rigs under construction and other improvements
|
|
|
(294,569
|
)
|
|
|
-
|
|
|
-
|
||
Drillship options
|
|
(99,024
|
)
|
|
|
-
|
|
|
-
|
|||
Drilling rigs, drillships machinery, equipment and other improvements
|
|
|
(6,834
|
)
|
|
|
(78,480
|
)
|
|
|
(97,869)
|
|
Fixed assets disposal
|
|
|
-
|
|
|
|
12
|
|
|
|
180
|
|
(Increase) / decrease in restricted cash
|
|
|
(335,898
|
)
|
|
|
385,011
|
|
|
(10,595)
|
||
Rig upgrades
|
|
|
-
|
|
|
|
(3,182
|
)
|
|
|
-
|
|
Net Cash Used in Investing Activities
|
|
|
(1,441,347
|
)
|
|
|
(1,561,501
|
)
|
|
|
(320,469)
|
|
Cash Flows from Financing Activities:
|
|
|
|
|
|
|
|
|
|
|
||
Capital contribution by DryShips Inc
|
|
|
540,321
|
|
|
|
-
|
|
|
|
-
|
|
Net proceeds from the issuance of common shares
|
|
|
488,301
|
|
|
|
-
|
|
|
|
-
|
|
Proceeds from short/long-term credit facilities, terms loans and senior notes
|
|
|
308,250
|
|
|
|
2,420,476
|
|
|
|
800,000
|
|
Proceeds from intercompany loan
|
|
|
-
|
|
|
|
175,500
|
|
|
|
-
|
|
Principal payments and repayments of short/long-term debt
|
|
|
(247,717
|
)
|
|
|
(926,666
|
)
|
|
|
(671,667)
|
|
Repayment of intercompany loan
|
|
|
-
|
|
|
|
(175,500
|
) |
|
|
-
|
|
Payment of financing costs, net
|
|
|
(8,094
|
)
|
|
|
(47,800
|
)
|
|
|
(19,679)
|
|
Net Cash Provided by Financing Activities
|
|
|
1,081,061
|
|
|
1,446,010
|
|
|
|
108,654
|
|
|
Net (decrease) / increase in cash and cash equivalents
|
|
|
(138,488
|
)
|
|
|
155,171
|
|
|
66,488
|
|
|
Cash and cash equivalents at beginning of years
|
|
|
234,195
|
|
|
|
95,707
|
|
|
|
250,878
|
|
Cash and cash equivalents at end of years
|
$
|
|
95,707
|
|
|
$
|
250,878
|
|
|
$
|
317,366
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL CASH FLOW INFORMATION:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the years for:
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest, net of amount capitalized
|
|
|
43,203
|
|
|
|
32,164
|
|
|
|
73,219
|
|
Income taxes
|
|
|
19,803
|
|
|
|
23,199
|
|
|
|
45,450
|
|
Year ended December 31,
|
||||||||||||
2010
|
2011
|
2012
|
||||||||||
Customer A
|
57 | % | 36 | % | - | |||||||
Customer B
|
43 | % | 18 | % | 49 | % | ||||||
Customer C
|
- | - | 18 | % | ||||||||
Customer D
|
- | 33 | % | 12 | % | |||||||
Customer E
|
- | 13 | % | - |
|
(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 Ocean Rig UDW., 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.
|
Intangible assets/liabilities
|
|
Years
|
Tradenames
|
|
10
|
Software
|
|
10
|
Fair value of above market acquired drilling contracts
|
|
Over remaining contract term
|
Fair value of below market acquired drilling contracts
|
|
Over remaining contract term
|
|
|
December 31,
|
|
|||||
|
|
2011
|
|
|
2012
|
|
||
Inventories
|
|
$
|
10,706
|
|
|
$
|
13,727
|
|
Deferred mobilization expenses
|
|
|
38,052
|
|
|
|
46,407
|
|
Prepayments and advances
|
|
|
11,521
|
|
|
|
14,789
|
|
Swap cash collateral
|
-
|
8,000
|
||||||
Other
|
|
|
4,969
|
|
|
|
10,716
|
|
|
|
$
|
65,248
|
|
|
$
|
93,639
|
|
|
December 31,
|
|||||||
|
2011
|
2012
|
||||||
Balance at beginning of year
|
$ | 1,888,490 | $ | 754,925 | ||||
Advances for drillships under construction and related costs
|
2,238,591 | 237,900 | ||||||
Drillships delivered
|
(3,372,156 | ) | - | |||||
Balance at end of year
|
$ | 754,925 | $ | 992,825 |
|
Cost
|
Accumulated
Depreciation
|
Net Book
Value
|
|||||||||
Balance December 31, 2010
|
1,440,117 | (190,784 | ) | 1,249,333 | ||||||||
Additions
|
78,480 | - | 78,480 | |||||||||
Transfer from drillships under construction
|
3,372,156 | - | 3,372,156 | |||||||||
Disposals
|
(1,147 | ) | 381 | (766 | ) | |||||||
Depreciation
|
- | (160,365 | ) | (160,365 | ) | |||||||
Balance December 31, 2011
|
$ | 4,889,606 | $ | (350,768 | ) | $ | 4,538,838 | |||||
Additions
|
82,939 | - | 82,939 | |||||||||
Disposals
|
(4,148 | ) | 3,835 | (313 | ) | |||||||
Depreciation
|
- | (222,002 | ) | (222,002 | ) | |||||||
Balance December 31, 2012
|
$ | 4,968,397 | (568,935 | ) | 4,399,462 |
|
|
|
|
|
|
|
|
|
|
|
Amortization Schedule
|
|
||||||||||||||||||||
|
|
Balance as of December 31, 2011
|
|
|
Amortization
for the year
ended
December 31, 2012
|
|
|
Balance as of December 31, 2012
|
|
|
2013
|
|
|
2014
|
|
|
2015
|
|
|
2016
|
|
|
2017 and thereafter
|
|
||||||||
Trade names
|
|
$
|
5,512
|
|
|
$
|
877
|
|
$
|
4,635
|
|
$
|
877
|
|
$
|
877
|
|
$
|
877
|
|
$
|
877
|
|
$
|
1,127
|
|||||||
Software
|
|
|
3,550
|
|
|
|
566
|
|
|
2,984
|
|
|
566
|
|
|
566
|
|
|
566
|
|
|
566
|
|
|
720
|
|||||||
Total intangible Assets, net
|
|
|
9,062
|
|
|
$
|
1,443
|
|
$
|
7,619
|
|
$
|
1,443
|
|
$
|
1,443
|
|
$
|
1,443
|
|
$
|
1,443
|
|
$
|
1,847
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, | ||||||||
2011 | 2012 | |||||||
Security deposits for derivatives
|
$ | 33,100 | $ | - | ||||
Option for construction of drillships (Note 5)
|
24,756 | - | ||||||
Deferred mobilization expenses
|
24,176 | 53,615 | ||||||
Other
|
9,049 | 18,150 | ||||||
Total
|
$ | 91,081 | $ | 71,765 |
|
|
December 31, 2011
|
|
December 31, 2012
|
|
|||
Term loans/Credit facilities
|
|
$
|
2,279,167
|
|
|
$
|
1,607,500
|
|
9.5% Senior Unsecured Notes
|
|
|
500,000
|
|
|
|
500,000
|
|
6.5% Senior Secured Notes
|
-
|
800,000
|
||||||
Less: Deferred financing costs
|
|
|
(43,402)
|
|
|
(54,090)
|
||
Total debt
|
|
|
2,735,765
|
|
|
2,853,410
|
||
Less: Current portion
|
|
|
(210,166)
|
|
|
(169,780)
|
||
|
|
|
|
|
|
|||
Long-term portion
|
|
$
|
2,525,599
|
|
$
|
2,683,630
|
Loan
|
|
Loan Agreement Date
|
|
Original
Amount
|
|
|
December 31,
2011
|
|
|
New
Loans
|
|
|
Repayments
|
|
|
December 31,
2012
|
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term Bank Loan
|
|
April 18, 2011
|
|
$
|
800,000
|
|
|
$
|
766,667
|
|
|
$
|
-
|
|
|
$
|
(66,667)
|
|
$
|
700,000
|
|
|
Credit Facility
|
|
September 17, 2008
|
|
|
1,040,000
|
|
|
|
522,500
|
|
|
|
-
|
|
|
|
(522,500)
|
|
|
-
|
|
|
Credit Facility
|
|
July 18, 2008
|
|
|
1,125,000
|
|
|
|
990,000
|
|
|
|
-
|
|
|
|
(82,500)
|
|
|
907,500
|
|
|
Senior Unsecured Notes
|
|
April 27, 2011
|
|
500,000
|
|
|
|
500,000
|
|
|
|
-
|
|
|
|
-
|
|
|
500,000
|
|
||
Drill Rigs Senior Notes
|
|
September 20, 2012
|
|
$
|
800,000
|
|
|
|
-
|
|
|
|
800,000
|
|
|
|
-
|
|
|
800,000
|
|
|
|
||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
|
|
|
|
|
|
|
|
$
|
2,779,167
|
|
|
$
|
800,000
|
|
|
$
|
(671,667)
|
|
$
|
2,907,500
|
|
|
|
|||
2013
|
$ | 176,667 | ||
2014
|
176,667 | |||
2015
|
176,666 | |||
2016
|
1,110,000 | |||
2017
|
910,000 | |||
2018 and thereafter
|
357,500 | |||
Total principal payments
|
2,907,500 | |||
Less: Financing fees
|
(54,090 | ) | ||
Total debt
|
$ | 2,853,410 |
Derivatives not designated
as Hedging Instruments
|
Balance Sheet Location
|
December 31, 2011
Fair value
|
December 31, 2012
Fair value
|
||||||
Interest rate swaps
|
Financial Instruments non-current assets
|
935 | |||||||
Interest rate swaps
|
Financial Instruments current liabilities
|
(40,727 | ) | (39,537 | ) | ||||
Interest rate swaps
|
Financial Instruments non-current liabilities
|
(52,025 | ) | (38,087 | ) | ||||
Total derivatives
|
|
$ | (92,752 | ) | $ | (76,689 | ) |
|
|
Amount of Gain/(Loss) Recognized in Other Comprehensive Oncome/(loss) on Derivative
(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
|
|
$
|
(27,018)
|
|
|
|
-
|
|
$
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
Total
|
|
$
|
(27,018)
|
|
|
|
-
|
|
$
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
|||
Foreign currency forward contracts
|
Other, net
|
|
$
|
1,104
|
|
|
|
(1,538)
|
|
|
$
|
-
|
|
Interest rate swaps
|
Loss on interest rate swaps
|
|
|
(40,303)
|
|
|
|
(33,455)
|
|
|
(36,974)
|
||
|
|
|
|
|
|
|
|
|
|
|
|||
Total
|
|
|
$
|
(39,199)
|
|
|
|
(34,993)
|
|
$
|
(36,974)
|
|
|
December 31,
2012
|
|
|
Quoted Prices
in Active
Markets for
Identical
Assets
(Level 1)
|
|
|
Significant Other
Observable
Inputs
(Level 2)
|
|
|
Unobservable
Inputs
(Level 3)
|
|
||||
Interest rate swaps-asset position
|
935
|
935
|
||||||||||||||
Interest rate swaps-liability position
|
|
$
|
(77,624)
|
|
|
-
|
|
|
|
(77,624)
|
|
$
|
-
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Total
|
|
$
|
(76,689)
|
|
|
-
|
|
|
|
(76,689)
|
|
$
|
-
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2011
|
|
|
December 31, 2012
|
|
||
Pension benefit obligation
|
|
$
|
2,546
|
|
|
$
|
4,057
|
|
|
|
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
|
|
|
December 31,
|
|
|||||||||
|
|
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
|
|
|
2011
|
|
|
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 |
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 |
|
|
December 31,
|
|
|||||
|
|
2011
|
|
|
2012
|
|
||
Cash flows hedges unrealized loss
|
|
$
|
(22,904
|
)
|
|
$
|
-
|
|
Cash flows hedges realized loss
|
|
|
(30,326
|
)
|
|
|
(29,292)
|
|
Actuarial pension gain
|
|
$
|
2,104
|
|
|
|
1,467
|
|
Total
|
|
|
(51,126
|
)
|
|
$
|
(27,825)
|
|
Year ended December 31,
|
|||||||||||
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||
Interest costs on long-term debt
|
|
$
|
30,749
|
|
|
$
|
87,505
|
|
|
$
|
135,819
|
|
Amortization of financing fee
|
|
|
5,078
|
|
|
|
17,778
|
|
|
|
12,944
|
|
Amortization of unrealized hedge reserve (Note 10.1)
|
|
|
-
|
|
|
|
9,816
|
|
|
|
9,816
|
|
Capitalized borrowing costs
|
|
|
(35,780
|
)
|
|
|
(57,761
|
)
|
|
|
(44,951)
|
|
Bank charges
|
|
|
1,997
|
|
|
|
2,006
|
|
|
|
604
|
|
Commissions and commitment fees
|
|
|
6,374
|
|
|
|
4,408
|
|
|
|
2,195
|
|
Total
|
|
$
|
8,418
|
|
|
$
|
63,752
|
|
|
$
|
116,427
|
|
|
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
|
$ | - | $ | - | ||||
|
|
|
|
|
|
|
|
|
|
|
|||
Country
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||
Ghana/Ivory Coast
|
|
$
|
227,649
|
|
|
$
|
230,018
|
|
|
$
|
175,595
|
|
Turkey
|
|
|
176,228
|
|
|
|
50,183
|
|
|
|
-
|
|
Norway
|
|
|
(715)
|
|
|
|
-
|
|
|
-
|
||
Brazil
|
|
|
-
|
|
|
|
(617)
|
|
|
|
233,569
|
|
Greenland
|
|
|
-
|
|
|
|
253,125
|
|
|
|
136
|
|
Ivory Coast
|
|
|
-
|
|
|
|
89,686
|
|
|
|
-
|
|
Tanzania
|
|
|
-
|
|
|
|
78,424
|
|
|
|
196,415
|
|
Angola
|
-
|
-
|
79,884
|
|||||||||
Namibia
|
-
|
-
|
33,212
|
|||||||||
Falkland
|
-
|
-
|
166,795
|
|||||||||
Equatorial Guinea
|
-
|
-
|
56,297
|
|||||||||
Total leasing and service revenues
|
|
$
|
403,162
|
|
|
$
|
700,819
|
|
|
$
|
941,903
|
|
2013
|
2014
|
2015
|
Total
|
||||||||||||
Drillships shipbuilding contracts
|
1,179,776 | - | 387,100 | 1,566,876 | ||||||||||||
Total obligations
|
1,179,776 | - | 387,100 | 1,566,876 |
|
|
2011
|
|
|
2012
|
|
||
|
|
|
|
|
|
|
||
ASSETS
|
|
|
|
|
|
|
||
CURRENT ASSETS:
|
|
|
|
|
|
|
||
Cash and cash equivalents
|
|
$
|
1,303
|
|
|
$
|
954
|
|
Other current assets
|
|
|
17,021
|
|
|
|
434
|
|
Total current assets
|
|
|
18,324
|
|
|
|
1,388
|
|
|
|
|
|
|
|
|
|
|
NON-CURRENT ASSETS:
|
|
|
|
|
|
|
|
|
Drillships options
|
|
|
24,756
|
|
|
|
-
|
|
Investments in subsidiaries*
|
|
|
3,469,901
|
|
|
|
3,424,157
|
|
Total non-current assets
|
|
|
3,494,657
|
|
|
|
3,424,157
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
3,512,981
|
|
|
$
|
3,425,545
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS' EQUITY
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
|
|
|
Other current liabilities
|
|
$ |
24,826
|
|
|
$ |
14,488
|
|
Financial instruments |
-
|
10,839
|
||||||
Total current liabilities
|
|
|
24,826
|
|
|
|
25,327
|
|
|
|
|
|
|
|
|
|
|
NON-CURRENT LIABILITIES
|
|
|
|
|
|
|
|
|
Long term debt, net of current portion
|
|
|
489,699
|
|
|
|
491,703
|
|
Total non-current liabilities
|
|
|
489,699
|
|
|
|
491,703
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS' EQUITY:
|
|
|
|
|
|
|
|
|
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2011 and 2012, nil 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, 131,696,928 and 131,725,128 issued and outstanding at December 31, 2011 and 2012 respectively
|
|
|
1,317
|
|
|
|
1,317
|
|
Additional paid-in capital
|
|
|
3,469,924
|
|
|
|
3,489,018
|
|
Accumulated other comprehensive loss
|
|
|
(51,126
|
)
|
|
|
(27,825
|
)
|
Accumulated deficit
|
|
|
(421,659
|
)
|
|
|
(553,995
|
)
|
Total stockholders' equity
|
|
|
2,998,456
|
|
|
|
2,908,515
|
|
Total liabilities and stockholders' equity
|
|
$
|
3,512,981
|
|
|
$
|
3,425,545
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010
|
|
|
|
2011
|
|
|
|
2012
|
|
EXPENSES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General and administrative expenses
|
|
$
|
2,456
|
|
$
|
8,591
|
|
|
$
|
12,877
|
|
|
Legal settlements and other, net
|
-
|
-
|
6,100
|
|||||||||
Operating loss
|
|
|
2,456
|
|
|
|
8,591
|
|
|
|
18,977
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OTHER INCOME / (EXPENSES):
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest and finance costs
|
|
|
(326)
|
|
|
|
(35,328
|
)
|
|
|
(58,210
|
)
|
Interest income
|
|
|
4,202
|
|
|
|
3,216
|
|
|
|
4
|
|
Loss on interest rate swaps
|
-
|
-
|
(38)
|
|||||||||
Other, net
|
|
|
37
|
|
|
|
1,068
|
|
|
|
(2,476)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other (expenses), net
|
|
|
3,913
|
|
|
|
(31,044)
|
|
|
|
(60,720
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity in earnings/(loss) of subsidiaries*
|
|
|
133,304
|
|
|
|
134,933
|
|
|
|
(52,639)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income/(loss)
|
|
$
|
134,761
|
|
|
$
|
95,298
|
|
|
$
|
(132,336)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings/(loss) per common share, basic and diluted
|
|
|
1.30
|
|
|
|
0.72
|
|
|
|
(1.00)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of shares, basic and diluted
|
|
|
103,908,279
|
|
|
|
131,696,928
|
|
|
|
131,696,935
|
|
|
|
2010
|
2011
|
2012
|
|
|||||||
Net income / (Loss)
|
|
$
|
134,761
|
|
|
$
|
95,298
|
|
$
|
(132,336)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Comprehensive income / (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized interest rate swap gains/(losses)
|
|
|
(5,495)
|
|
|
|
3,272
|
|
|
-
|
||
Realized loss on cash flow hedges associated with capitalized interest
|
|
|
(21,523)
|
|
|
(3,272)
|
|
|
-
|
|||
Reclassification of realized losses associated with capitalized interest to Consolidated Statement of Operations
|
|
|
-
|
|
|
|
722
|
|
|
1,034
|
||
Reclassification of losses on previously designated cash flow hedges to Consolidated Statement of Operations, net
|
|
|
-
|
|
|
|
9,816
|
|
|
22,904
|
||
Actuarial gains/(losses)
|
|
|
424
|
|
|
|
(942)
|
|
|
(637)
|
||
Other Comprehensive income/ (loss)
|
|
|
(26,594)
|
|
|
|
9,596
|
|
|
23,301
|
||
Total Comprehensive income / (loss)
|
|
$
|
108,167
|
|
|
$
|
104,894
|
|
$
|
(109,035)
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|||
Net Cash Used in Operating Activities
|
|
$
|
(753
|
)
|
|
$
|
(28,728
|
)
|
|
$
|
(59,992
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Investing Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Investments in subsidiaries
|
|
|
(583,498
|
)
|
|
|
(846,731
|
)
|
|
|
59,643
|
|
Drillships options
|
|
|
(99,024
|
)
|
|
|
-
|
|
|
|
-
|
|
Restricted cash
|
|
|
(302,011
|
)
|
|
|
302,011
|
|
|
|
-
|
|
Net Cash (Used in)/Provided by Investing Activities
|
|
|
(984,533
|
)
|
|
|
(544,720
|
)
|
|
|
59,643
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Financing Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Due to subsidiaries
|
|
|
(335,223
|
)
|
|
|
334,996
|
|
|
-
|
||
Capital contribution from DryShips
|
|
|
583,498
|
|
|
|
- |
|
|
|
- |
|
Net proceeds from common stock issuance
|
|
|
488,301
|
|
|
|
-
|
|
|
|
-
|
|
Proceeds from credit facility
|
|
|
300,000
|
|
|
|
500,000
|
|
|
|
-
|
|
Payments of credit facility
|
|
|
-
|
|
|
|
(300,000
|
)
|
|
|
-
|
|
Payment of financing fees
|
|
|
-
|
|
|
|
(11,535
|
)
|
|
|
- |
|
Net Cash Provided by Financing Activities
|
|
|
1,036,576
|
|
|
|
523,461
|
|
|
|
-
|
|
Net (decrease) / increase in cash and cash equivalents
|
|
|
51,290
|
|
|
|
(49,987
|
)
|
|
|
(349
|
)
|
Cash and cash equivalents at beginning of year
|
|
|
-
|
|
|
|
51,290
|
|
|
|
1,303
|
|
Cash and cash equivalents at end of year
|
|
$
|
51,290
|
|
|
$
|
1,303
|
|
|
$
|
954
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE I
|
||
DEFINITIONS AND INCORPORATION BY REFERENCE
|
||
Section 1.01
|
Definitions
|
1
|
Section 1.02
|
Other Definitions
|
31
|
Section 1.03
|
Rules of Construction
|
32
|
ARTICLE II
|
||
THE NOTES
|
||
Section 2.01
|
Form and Dating
|
33
|
Section 2.02
|
Execution and Authentication
|
34
|
Section 2.03
|
Registrar, Transfer Agent and Paying Agent
|
35
|
Section 2.04
|
Paying Agent to Hold Money in Trust
|
35
|
Section 2.05
|
Holder Lists
|
36
|
Section 2.06
|
Transfer and Exchange
|
36
|
Section 2.07
|
Replacement Notes
|
45
|
Section 2.08
|
Outstanding Notes
|
45
|
Section 2.09
|
Treasury Notes
|
46
|
Section 2.10
|
Temporary Notes
|
46
|
Section 2.11
|
Cancelation
|
46
|
Section 2.12
|
Default Interest
|
47
|
Section 2.13
|
Persons Deemed Owners
|
47
|
Section 2.14
|
Interest Payment Date; Record Date
|
47
|
ARTICLE III
|
||
REDEMPTION AND PURCHASE
|
||
Section 3.01
|
Notices to Trustee
|
48
|
Section 3.02
|
Selection of Notes to Be Redeemed or Purchased
|
48
|
Section 3.03
|
Notice of Redemption
|
48
|
Section 3.04
|
Effect of Notice of Redemption
|
50
|
Section 3.05
|
Deposit of Redemption or Purchase Price
|
50
|
Section 3.06
|
Notes Redeemed or Purchased in Part
|
50
|
Section 3.07
|
Optional Redemption
|
51
|
Section 3.08
|
Optional Redemption for Changes in Withholding Taxes
|
52
|
Section 3.09
|
Mandatory Redemption Upon Total Loss of a Drilling Unit
|
53
|
|
ARTICLE IV
|
||
COVENANTS
|
||
Section 4.01
|
Payment of Notes
|
53
|
Section 4.02
|
Maintenance of Office or Agency
|
53
|
Section 4.03
|
Corporate Existence
|
54
|
Section 4.04
|
Compliance Certificate
|
54
|
Section 4.05
|
Taxes
|
55
|
Section 4.06
|
Stay, Extension and Usury Laws
|
55
|
Section 4.07
|
Restricted Payments
|
55
|
Section 4.08
|
Incurrence of Indebtedness and Issuance of Preferred Stock
|
58
|
Section 4.09
|
Liens
|
62
|
Section 4.10
|
Dividend and Other Payment Restrictions Affecting Subsidiaries
|
62
|
Section 4.11
|
Transactions with Affiliates
|
64
|
Section 4.12
|
Business Activities
|
65
|
Section 4.13
|
Rights to Earnings from Drilling Units
|
65
|
Section 4.14
|
Additional Note Guarantees
|
66
|
Section 4.15
|
Designation of Restricted and Unrestricted Subsidiaries
|
67
|
Section 4.16
|
Payments for Consent
|
68
|
Section 4.17
|
Reports
|
68
|
Section 4.18
|
Suspension of Certain Covenants
|
70
|
Section 4.19
|
Offer To Repurchase Upon Change of Control
|
70
|
Section 4.20
|
Asset Sales Other than a Drilling Unit
|
73
|
Section 4.21
|
Drilling Unit Sales
|
76
|
Section 4.22
|
Impairment of Security Interest
|
78
|
Section 4.23
|
Additional Amounts
|
78
|
Section 4.24
|
Maintenance of Properties; Insurance
|
81
|
ARTICLE V
|
||
SUCCESSORS
|
||
Section 5.01
|
Merger, Consolidation or Sale of Assets
|
81
|
Section 5.02
|
Successor Corporation Substituted
|
84
|
ARTICLE VI
|
||
DEFAULTS AND REMEDIES
|
||
Section 6.01
|
Events of Default
|
84
|
Section 6.02
|
Acceleration
|
85
|
Section 6.03
|
Other Remedies
|
86
|
Section 6.04
|
Waiver of Past Defaults
|
86
|
Section 6.05
|
Control by Majority
|
86
|
Section 6.06
|
Limitation on Suits
|
86
|
Section 6.07
|
Rights of Holders To Receive Payment
|
87
|
Section 6.08
|
Collection Suit by Trustee or Noteholder Collateral Agent
|
87
|
Section 6.09
|
Trustee May File Proofs of Claim
|
88
|
Section 6.10
|
Priorities
|
88
|
Section 6.11
|
Undertaking for Costs
|
89
|
ARTICLE VII
|
||
TRUSTEE
|
||
Section 7.01
|
Duties of Trustee
|
89
|
Section 7.02
|
Rights of Trustee
|
90
|
Section 7.03
|
Individual Rights of Trustee
|
91
|
Section 7.04
|
Trustee's Disclaimer
|
91
|
Section 7.05
|
Notice of Defaults
|
92
|
Section 7.06
|
Reserved
|
92
|
Section 7.07
|
Compensation and Indemnity
|
92
|
Section 7.08
|
Replacement of Trustee
|
93
|
Section 7.09
|
Successor Trustee by Merger, Etc
|
94
|
Section 7.10
|
Eligibility; Disqualification
|
95
|
Section 7.11
|
Reserved
|
95
|
Section 7.12
|
Trustee in Other Capacities; Noteholder Collateral Agent and Paying Agent
|
95
|
ARTICLE VIII
|
||
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
||
Section 8.01
|
Option to Effect Legal Defeasance or Covenant Defeasance
|
95
|
Section 8.02
|
Legal Defeasance and Discharge
|
95
|
Section 8.03
|
Covenant Defeasance
|
96
|
Section 8.04
|
Conditions to Legal or Covenant Defeasance
|
97
|
Section 8.05
|
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
|
98
|
Section 8.06
|
Repayment to Company
|
99
|
Section 8.07
|
Reinstatement
|
99
|
ARTICLE IX
|
||
AMENDMENT, SUPPLEMENT AND WAIVER
|
||
Section 9.01
|
Without Consent of Holders
|
100
|
Section 9.02
|
With Consent of Holders
|
101
|
Section 9.03
|
Reserved
|
103
|
Section 9.04
|
Revocation and Effect of Consents
|
103
|
Section 9.05
|
Notation on or Exchange of Notes
|
103
|
Section 9.06
|
Trustee and Noteholder Collateral Agent to Sign Amendments, Etc
|
104
|
ARTICLE X
|
||
SATISFACTION AND DISCHARGE
|
||
Section 10.01
|
Satisfaction and Discharge
|
104
|
Section 10.02
|
Application of Trust Money
|
105
|
ARTICLE XI
|
||
NOTE GUARANTEES
|
||
Section 11.01
|
Note Guarantee
|
106
|
Section 11.02
|
Limitation on Guarantor Liability
|
107
|
Section 11.03
|
Releases
|
107
|
ARTICLE XII
|
||
SECURITY
|
||
Section 12.01
|
Grant of Security Interests
|
108
|
Section 12.02
|
Recording and Opinions
|
110
|
Section 12.03
|
Release of Collateral
|
112
|
Section 12.04
|
Form and Sufficiency of Release
|
113
|
Section 12.05
|
Authorization of Actions to be Taken by the Noteholder Collateral Agent Under the Collateral Agreements
|
113
|
Section 12.06
|
Authorization of Receipt of Funds by the Trustee Under the Collateral Agreements
|
114
|
Section 12.07
|
Replacement of Noteholder Collateral Agent
|
114
|
Section 12.08
|
Further Assurances
|
115
|
Section 12.09
|
Noteholder Collateral Agent
|
116
|
ARTICLE XIII
|
||
MISCELLANEOUS
|
||
Section 13.01
|
Notices
|
119
|
Section 13.02
|
Certificate and Opinion as to Conditions Precedent
|
121
|
Section 13.03
|
Statements Required in Certificate or Opinion
|
122
|
Section 13.04
|
Rules by Trustee and Agents
|
122
|
Section 13.05
|
No Personal Liability of Directors, Officers, Employees and Stockholders
|
122
|
Section 13.06
|
Governing Law
|
122
|
Section 13.07
|
No Adverse Interpretation of Other Agreements
|
123
|
Section 13.08
|
Successors
|
123
|
Section 13.09
|
Severability
|
123
|
Section 13.10
|
Counterpart Originals
|
123
|
Section 13.11
|
Table of Contents, Headings, Etc
|
123
|
Section 13.12
|
Prescription
|
123
|
Section 13.13
|
Patriot Act
|
123
|
Section 13.14
|
Force Majeure
|
123
|
EXHIBITS | ||
Exhibit A | FORM OF NOTE | A-1 |
Exhibit B | FORM OF CERTIFICATE OF TRANSFER | B-1 |
Exhibit C | FORM OF CERTIFICATE OF EXCHANGE | C-1 |
Exhibit D | FORM OF SUPPLEMENTAL INDENTURE | D-1 |
Term
|
Defined in Section
|
"Additional Amounts"
|
4.23(a)
|
"Affiliate Transaction"
|
4.11(a)
|
"Asset Sale Offer"
|
4.20(c)
|
"Authentication Order"
|
2.02
|
"Authentication Agent"
|
2.02
|
"Change of Control Offer"
|
4.19(a)
|
"Change of Control Payment"
|
4.19(a)
|
"Change of Control Payment Date"
|
4.19(a)
|
"Company"
|
Preamble
|
"Covenant Defeasance"
|
8.03
|
"DBTCA"
|
2.03
|
Term
|
Defined in Section
|
"Default Interest"
|
2.12
|
"DTC"
|
2.03
|
"Drilling Unit Sale"
|
4.21(a)
|
"Drilling Unit Sale Offer"
|
4.21(b)
|
"Event of Default"
|
6.01
|
"Excess Proceeds"
|
4.20(c)
|
"Global Exchange Market"
|
2.03
|
"Incur"
|
4.08(a)
|
"Indemnified Party"
|
7.07(a)
|
"interest"
|
1.03
|
"Interest Payment Date"
|
2.14
|
"Legal Defeasance"
|
8.02
|
"MD&A"
|
4.17(a)(1)
|
"Non-Collateral Vessel Sale"
|
4.20(b)(5)
|
"Noteholder Collateral Agent"
|
Preamble
|
"Notes"
|
Preamble
|
"Parent"
|
Preamble
|
"Paying Agent"
|
2.03
|
"Payment Default"
|
6.01(5)(A)
|
"Permitted Debt"
|
4.08(b)
|
"Record Date"
|
2.14
|
"Registrar"
|
2.03
|
"Relevant Date"
|
13.12
|
"Restricted Payments"
|
4.07(a)
|
"Resale Restriction Termination Date"
|
2.06
|
"Reversion Date"
|
4.18(b)
|
"Special Interest Payment Date"
|
2.12
|
"Special Record Date"
|
2.12
|
"Specified Tax Jurisdiction"
|
4.23(a)
|
"Successor Company"
|
5.01(b)(1)
|
"Successor Parent"
|
5.01(a)(1)
|
"Suspended Covenant"
|
4.18(a)
|
"Suspension Event"
|
4.18(a)
|
"Taxes"
|
4.23(a)
|
"Transfer Agent"
|
2.03
|
"Trustee"
|
Preamble
|
For the Period Below
|
Percentage
|
From October 1, 2015 to September 30, 2016
|
103.250%
|
October 1, 2016 and thereafter
|
100.000%
|
If to the Company and/or any Guarantor:
|
|
Drill Rigs Holdings Inc.
|
|
c/o Ocean Rig UDW Inc.
Tribune House
10 Skopa Street
Nicosia, Cyprus
Attention: Mr. Savvas Georghiades
|
|
Facsimile: +357 2276 1542
|
|
+357 2276 0128
|
With a copy to:
|
|
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
United States of America
Facsimile: +1 (212) 480-8421
|
|
Attention: Gary J. Wolfe, Esq.
|
|
Robert Lustrin, Esq.
|
|
If to the Trustee:
|
|
U.S. Bank National Association
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust Services
Facsimile: (212) 361-5217
|
|
If to the Noteholder Collateral Agent:
|
|
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 27th Floor
Mail Stop: NYC60-2710
New York, New York 10005
USA
Attn: Corporate Team, Drill Rigs Holdings
Facsimile No.: (732) 578-4635
|
|
With a copy to:
|
|
Deutsche Bank National Trust Company
for Deutsche Bank Trust Company Americas
Trust and Agency Services
100 Plaza One – 6th Floor
MSJCY03-0699
Jersey City, NJ 07311-3901
USA
Attn: Corporate Team, Drill Rigs Holdings
Facsimile No.: (732) 578-4635
|
|
DRILL RIGS HOLDINGS INC., as the Company
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG UDW INC., as Parent and as a Guarantor
|
||
By:
|
/s/ George Economou
|
|
Name:
|
George Economou
|
|
Title:
|
Chief Executive Officer
|
|
OCEAN RIG 1 INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG 2 INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG 1 SHAREHOLDERS INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG 2 SHAREHOLDERS INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG 1 GREENLAND OPERATIONS INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG FALKLAND OPERATIONS INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
DRILL RIGS OPERATIONS INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG EG OPERATIONS INC., as Guarantor
|
||
By:
|
/s/ Jan Rune Steinsland
|
|
Name:
|
Jan Rune Steinsland
|
|
Title:
|
President
|
|
OCEAN RIG NORWAY OPERATIONS INC., as Guarantor
|
||
By:
|
/s/ Eleni Papapetrou
|
|
Name:
|
Eleni Papapetrou
|
|
Title:
|
President
|
|
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
||
By:
|
/s/ John J. Doherty
|
|
Name:
|
John J. Doherty
|
|
Title:
|
Vice President
|
|
DEUSTCHE BANK TRUST COMPANY AMERICAS, as Noteholder Collateral Agent, Registrar and Paying Agent
|
||
By:
|
Deutsche Bank National Trust Company
|
|
By:
|
/s/ Jacqueline Bartnick
|
|
Name:
|
Jacqueline Bartnick
|
|
Title:
|
Director
|
|
By:
|
/s/ Annie Jaghatspanyan
|
|
Name:
|
Annie Jaghatspanyan
|
|
Title:
|
Vice President
|
|
[Face of Rule 144A/Reg. S Note]
|
No.
|
$
|
|||
DRILL RIGS HOLDINGS INC.
|
||
By:
|
||
Name:
|
||
Title:
|
||
This is one of the Notes referred to
|
|||
in the within-mentioned Indenture:
|
|||
Dated as of:
|
|||
DEUTSCHE BANK TRUST COMPANY AMERICAS,
|
|||
as Authentication Agent
|
|||
By:
|
|||
Authorized Signatory
|
|||
For the Period Below
|
Percentage
|
From October 1, 2015 to September 30, 2016
|
103.250%
|
October 1, 2016 and thereafter
|
100%
|
(I) or (we) assign and transfer this Note to:
|
||||||||
(Insert assignee's legal name)
|
(Insert assignee's soc. sec. or tax I.D. no.)
|
||||||||
(Print or type assignee's name, address and zip code)
|
||||||||
and irrevocably appoint
|
||||||||
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
|
Date:
|
Your Signature:
|
||||||||
(Sign exactly as your name appears on the face of this Note)
|
Signature Guarantee*:
|
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
|
[_]
|
Section 4.19 ("Offer to
|
[_]
|
Section 4.20 ("Asset Sales
|
[_]
|
Section 4.21 ("Drilling Unit
|
Repurchase Upon Change of
|
Other than a Drilling Unit")
|
Sales")
|
|||
Control")
|
|||||
$
|
|||||||||||
Date:
|
|||||||||||
Your Signature:
|
||
(Sign exactly as your name appears on the face of this Note)
|
||
Tax Identification No.:
|
Signature Guarantee*:
|
|||||||||||
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
|
Date of Exchange
|
Amount of
decrease in
Principal
Amount of this
Global Note
|
Amount of
increase in
Principal Amount of this
Global Note
|
Principal
Amount of this
Global Note
following such
decrease (or
increase)
|
Signature of authorized officer of Trustee or Custodian
|
|||
[Insert Name of Transferor]
|
by:
|
||||
|
Name:
|
|||
|
Title:
|
|||
Dated:
|
||||
(i)
|
[_]
|
Rule 144A Global Note (CUSIP [ ]), or
|
|
(ii)
|
[_]
|
Regulation S Global Note (CUSIP [ ]), or
|
|
(i)
|
[_]
|
Rule 144A Global Note (CUSIP [ ]), or
|
|
(ii)
|
[_]
|
Regulation S Global Note (CUSIP [ ]), or
|
|
in accordance with the terms of the Indenture.
|
[Insert Name of Transferor]
|
by:
|
||||
|
Name:
|
|||
|
Title:
|
|||
Dated:
|
||||
[NEW GUARANTOR],
|
|||||
by: | |||||
|
|||||
|
Name:
|
||||
|
Title:
|
||||
DRILL RIGS HOLDINGS INC., as the Company
|
|||||
by:
|
|||||
|
|||||
|
Name:
|
||||
|
Title:
|
||||
OCEAN RIG UDW INC., as parent and as a Guarantor
|
|||||
by:
|
|||||
|
|||||
|
Name:
|
||||
|
Title:
|
||||
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
|||||
by:
|
|||||
|
|||||
|
Name:
|
||||
|
Title:
|
||||
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
||
by:
|
||
|
||
|
Name:
|
|
|
Title:
|
|
DEUSTCHE BANK TRUST COMPANY AMERICAS, as Noteholder Collateral Agent, Registrar and Paying Agent
|
||
by:
|
Deutsche Bank National Trust Company
|
|
by:
|
||
|
||
|
Name:
|
|
|
Title:
|
|
by:
|
||
|
||
|
Name:
|
|
|
Title:
|
|
DRILL RIGS HOLDINGS INC., as the Company
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG UDW INC., as Parent and as a Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG 1 INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG 2 INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG 1 SHAREHOLDERS INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG 2 SHAREHOLDERS INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG 1 GREENLAND OPERATIONS INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG FALKLAND OPERATIONS INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
DRILL RIGS OPERATIONS INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG EG OPERATIONS INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG NORWAY OPERATIONS INC., as Guarantor
|
||
by
|
||
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
||
by
|
||
/s/ John J. Doherty
|
||
Name: John J. Doherty
Title: Vice President
|
OCEAN RIG LIBERIA OPERATIONS INC.
|
|
By
|
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG WEST AFRICA OPERATIONS INC.
|
|
by
|
DRILL RIG HOLDINGS INC., as the Company
|
|
by
|
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG UDW INC., as Parent and as a Guarantor
|
|
by
|
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
by
|
/s/ John J. Doherty
|
||
Name: John J. Doherty
Title: Vice President
|
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Noteholder Collateral Agent, Registrar and Paying Agent
by: Deutsche Bank National Trust Company
|
by
|
/s/ Jeffrey Schoenfeld
|
||
Name: Jeffrey Schoenfeld
Title: Associate
|
||
|
by
|
/s/ Kelvin Vargas
|
||
Name: Kelvin Vargas
Title: Associate
|
OCEAN RIG IRELAND OPERATIONS INC.
|
|
by
|
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
DRILL RIG HOLDINGS INC., as the Company
|
|
by
|
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
OCEAN RIG UDW INC., as Parent and as a Guarantor
|
|
by
|
/s/ Ziad Nakhleh
|
||
Name: Ziad Nakhleh
Title: Attorney-in-fact
|
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
|
by
|
/s/ John J. Doherty
|
||
Name: John J. Doherty
Title: Vice President
|
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Noteholder Collateral Agent, Registrar and Paying Agent
by: Deutsche Bank National Trust Company
|
by
|
/s/ Jeffrey Schoenfeld
|
||
Name: Jeffrey Schoenfeld
Title: Assistant Vice President
|
||
|
||
by
|
/s/ Irina Golovashchuk
|
||
Name: Irina Golovashchuk
Title: Vice President
|
|
1)
|
SAMSUNG HEAVY INDUSTRIES CO. LTD, a corporation of Korea, having its registered office at 34th floor, Samsung Life Insurance Seocho Tower 1321-15 Seocho-Dong, Seocho-Gu, Seoul, Korea 137-857 (hereinafter referred to as "Samsung"); and
|
|
2)
|
OCEAN RIG UDW INC. of Majuro, Marshall Islands, which maintains a shipping office at 80 Kifisias Avenue, GR-15125 Marousi, Athens, Greece (hereinafter "Ocean Rig")
|
|
(A)
|
Pursuant to the terms of the Drillship Master Agreement, Addendum No.1, and Addendum No.2, among others it was agreed for the Ocean Rig to have a contractual right until 2nd April 2012 (the "Option Expiry Date") to order to Samsung the construction of up to three (3) drillships (the "Drillship A", "Drillship B" and "Drillship C" and together the "Drillships") at the price and specifications set out therein and for the other terms and conditions set out therein.
|
|
(B)
|
Pursuant to the terms of the Drillship Master Agreement, Addendum No.1, and Addendum No.2, the delivery dates for the Drillships are as set out in the table below:
|
Drillship
|
Delivery Date
|
Drillship A
|
4th quarter 2014
|
Drillship B
|
To be advised by Samsung at its reasonable discretiondeclaring the earliest available date based on their production schedule, always acting in good faith when doing so
|
Drillship C
|
To be advised by Samsung at its reasonable discretion declaring the earliest available date based on their production schedule, always acting in good faith when doing so
|
|
(C)
|
Samsung and Ocean Rig have now agreed for the Option Expiry Date to be extended to 4th October 2012.
|
Drillship
|
Delivery Date
|
Drillship A / Drillship B / Drillship C
|
To be advised by Samsung at its reasonable discretion declaring the earliest available date based on their production schedule, always acting in good faith when doing so
|
For and on behalf of
OCEAN RIG UDW INC.
|
For and on behalf of the Builder
SAMSUNG HEAVY INDUSTRIES CO., LTD.
|
||
/s/ Iraklis Sbarounis |
|
/s/ Dong Jin Oh
|
|
By: IRAKLIS SBAROUNIS | By: DONG JIN OH | ||
Title: Attorney-in-Fact | Title: Attorney-In-Fact |
1)
|
SAMSUNG HEAVY INDUSTRIES CO. LTD, a corporation of Korea, having its registered office at 34th floor, Samsung Life Insurance Seocho Tower 1321-15 Seocho-Dong, Seocho-Gu, Seoul, Korea 137-857 (hereinafter referred to as "Samsung"); and
|
2)
|
OCEAN RIG UDW INC. of Majuro, Marshall Islands, which maintains a shipping office at 80 Kifisias Avenue, GR-15125 Marousi, Athens, Greece (hereinafter "Ocean Rig")
|
(A)
|
Pursuant to the terms of the Drillship Master Agreement, Addendum No.1, Addendum No.2, and Addendum No.3 among others it was agreed for the Ocean Rig to have a contractual right until 4th October 2012 (the "Option Expiry Date") to order to Samsung the construction of up to three (3) drillships (the "Drillship A", "Drillship B" and "Drillship C" and together the "Drillships") at the price and specifications set out therein and for the other terms and conditions set out therein.
|
(B)
|
Samsung and Ocean Rig have now agreed for the Option Expiry Date to be extended to 31st March 2013.
|
Drillship
|
Delivery Date
|
Drillship A / Drillship B / Drillship C
|
To be advised by Samsung at its reasonable discretion declaring the earliest available date based on their production schedule, always acting in good faith when doing so
|
For and on behalf of
OCEAN RIG UDW INC
|
For and on behalf of the Builder
SAMSUNG HEAVY INDUSTRIES CO., LTD.
|
|||
/s/ Iraklis Sbarounis
|
/s/ Dong Jin Oh
|
|||
By:
Title:
|
IRAKLIS SBAROUNIS
Attorney-in-Fact
|
By:
Title:
|
DONG JIN OH
Attorney-in-Fact
|
Clause |
Page
|
|
1.
|
INTERPRETATION
|
3
|
2.
|
CONDITIONS PRECEDENT
|
3
|
3.
|
AMENDMENTS TO THE FACILITY AGREEMENT
|
4
|
4.
|
COSTS AND EXPENSES
|
6
|
5.
|
MISCELLANEOUS
|
6
|
6.
|
GOVERNING LAW AND JURISDICTION
|
6
|
(1)
|
Drillships Holdings Inc., of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MI196960, registration no. 25319 (the "Borrower");
|
(2)
|
The Guarantors listed in Schedule 2 to the Facility Agreement (each a "Guarantor")
|
(3)
|
The banks and financial institutions listed in Schedule 1 to the Facility Agreement, as original commercial lenders (together, the "Commercial Lenders");
|
(4)
|
Eksportfinans ASA of Dronning Maudsgate 15, Vika, N-0250 Oslo, Norway, org. no. 816 521 432 ("Eksportfinans", together with the Commercial Lenders, the "Lenders")
|
(5)
|
The Bookrunners as listed in the Facility Agreement ("Bookrunners");
|
(6)
|
The Mandated Lead Arrangers as listed in the Facility Agreement ("Mandated Lead Arrangers");
|
(7)
|
Deutsche Bank AG Filiale Deutschlandgeschaft as co-arranger (the "Co-Arranger"); and
|
(8)
|
Nordea Bank Finland Plc., London Branch of 8th Floor, City Place House, 55 Basinghall Street, London EC2V 5NB, United Kingdom as facility agent (the "Agent").
|
(A)
|
Pursuant to a certain senior secured credit facility agreement dated 15 April 2011 between, among others, the Borrower, the Guarantors, the Agent and the Lenders (the "Facility Agreement"), the Lenders have agreed to make available a credit facility up to USD 800,000,000 to the Borrower subject to the terms and conditions set out therein.
|
(B)
|
Pursuant to a request dated 22 February 2012, the Borrower has requested that certain provisions in the Facility Agreement be amended.
|
3.1
|
With effect from the Effective Date, DryShips Inc. will be released as a Guarantor and Obligor pursuant to the Facility Agreement, and be deleted from Schedule 2 Part I of the Facility Agreement.
|
3.2
|
With effect from the Effective Date, the definition of Guarantors will be deleted in its entirety and replaced with the following:
|
3.3
|
With effect from the Effective Date, the definition of Ocean Rig Obligors will be deleted in its entirety and replaced with the following:
|
3.4
|
With effect from the Effective Date, the definition of Permitted Holders will be deleted in its entirety and replaced with the following:
|
3.5
|
With effect from the Effective Date, the definition of Shareholder Guarantor will be deleted in its entirety.
|
3.6
|
With effect from the Effective Date, Clause 21.2 (Compliance Certificate) (b), Clause 23 (Financial Covenants for the Shareholder Guarantor), Clause 26.6 (Cross default) (c), Clause 26.7 (Insolvency) (b) and Schedule 5 Part II will be deleted in its entirety.
|
3.7
|
With effect from the Effective Date, Clause 20.17 (Ownership) (c) will be deleted in its entirety and be replaced by the following:
|
|
"(c)
|
DryShips Inc. owns as of the date of this Agreement 65.2 % of the shares and the ownership interests in Ocean Rig UDW Inc. as described in Schedule 8 (Corporate Structure) hereto."
|
3.8
|
With effect from the Effective Date, Clause 22.1 (Minimum Cash and Cash Equivalent) will be deleted in its entirety and replaced with the following:
|
|
|
Save as set out in clause 24.13 (Dividends), Ocean Rig UDW Inc. and the Borrower undertake that the Cash and Cash Equivalent of:
|
|
|
(a) the Ocean Rig Group will not at any time fall below USD 100,000,000; and
|
|
|
(b) the Borrower will not at any time fall below USD 50,000,000."
|
3.9
|
With effect from the Effective Date, Clause 24.13 (Dividends) will be deleted in its entirety and replaced with the following:
|
|
|
(a) The Borrower and Ocean Rig UDW Inc. may buy-back its own common stock:
|
|
|
(b) the Borrower may pay dividends to its shareholders; and
|
|
|
(c) Ocean Rig UDW Inc. may only pay dividends (or make any other distributions to its shareholders) up to 50% of its net income of each previous financial year; |
|
(i)
|
immediately following such payment or distribution or buy-back of stock the holding of Cash and Cash Equivalent and restricted cash of the Ocean Rig Group shall be no less than USD 200,000,000; and
|
|
(ii)
|
the Agent be provided with evidence by way of cash flow forecasts that the USD 200,000,000 minimum holding of Cash and Cash Equivalent and restricted cash of the Ocean Rig Group will be maintained for a period of at least twelve (12) months from the date of distribution of such dividend, such cash flow forecasts to include (i) all committed payments in relation to capital expenditures, (ii) scheduled repayment of debt and (iii) scheduled debt drawdowns under committed facilities."
|
3.10
|
With effect from the Effective Date, Clause 26.2 (Financial Covenants and Insurance) will be deleted in its entirety and replaced with the following:
|
3.11
|
If, in the reasonable opinion of the Agent (on behalf of the Lenders):
|
|
(a)
|
any amendments to the Drillship Kithira Owners Inc. facility agreement entered into on 18 July 2008 and the Drillship Skopelos Owners Inc. facility agreement entered into on 18 July 2008, both with Deutsche Bank as Agent (the "Deutsche Bank Facilities") corresponding to the amendments contemplated by this Amendment Agreement are more favourable to the lenders than the amendments incorporated in this Amendment Agreement; or
|
|
(b)
|
any amendments that are favourable to the lenders, including an increase in the applicable margin, are incorporated in the Deutsche Bank Facilities due to amendments to the Deutsche Bank Facilities that are similar to the amendments incorporated in this Amendment Agreement,
|
3.12
|
Except as expressly modified by this Amendment Agreement, all terms and provisions of the Facility Agreement shall remain in full force and effect and are hereby ratified and confirmed in all respects by the Parties as if herein set forth in their entirety. All references in the Facility Agreement to "this Agreement", "hereof', "hereby", "hereto", and the like shall, from and including the Effective Date, mean the Facility Agreement as herein amended.
|
4.
|
COSTS AND EXPENSES
|
5.
|
MISCELLANEOUS
|
5.1
|
The Obligors represent and warrant to the Agent that the representations and warranties in Clause 20 (Representations and warranties) of the Facility Agreement (as amended) remain true and correct and that no Event of Default has occurred or will occur as a consequence of the entering into of this Amendment Agreement or the compliance herewith.
|
5.2
|
This Amendment Agreement shall constitute a Finance Document.
|
5.3
|
No failure or delay by the Agent in exercising any right or remedy under any Finance Document shall operate as a waiver, and no single or partial exercise shall prevent further exercise, of any right or remedy.
|
5.4
|
If at any time any provision of this Amendment Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability or such provision under the law of any other jurisdiction shall in any way be affected or impaired.
|
5.5
|
This Amendment Agreement may be executed in any number of counterparts which when taken together shall constitute one and the same instrument.
|
6.
|
GOVERNING LAW AND JURISDICTION
|
|
(a)
|
Certificate of Incorporation (or similar);
|
|
(b)
|
By-laws (or similar);
|
|
(c)
|
Updated Good Standing Certificate;
|
|
(d)
|
Resolutions passed at a board meeting and shareholders meeting (if applicable) of the Borrower evidencing:
|
|
(i)
|
the approval of the terms of, and the transactions contemplated by, this Amendment Agreement;
|
|
(ii)
|
the authorisation of its appropriate officer or officers or other representatives to execute this Amendment Agreement and any other documents necessary for the transactions contemplated by this Amendment Agreement, on its behalf; and
|
|
(iii)
|
attaching certified true copies of valid proof of identity in respect of the persons signing this Amendment Agreement (and any other documents necessary for the transactions contemplated by this Amendment Agreement) on behalf of the Borrower;
|
|
(e)
|
Power of Attorney (notarised and legalised if requested by the Agent); and
|
|
(f)
|
Directors/Secretary's Certificate, certifying and attaching constitutional documents, authorisations, etc.
|
|
(a)
|
Certificate of Incorporation (or similar);
|
|
(b)
|
By-laws (or similar);
|
|
(c)
|
Updated Good Standing Certificate;
|
|
(d)
|
Resolutions passed at a board meeting and shareholders meeting (if applicable) of the Guarantor evidencing:
|
|
(i)
|
the approval of the terms of, and the transactions contemplated by, this Amendment Agreement;
|
|
(ii)
|
the authorisation of its appropriate officer or officers or other representatives to execute this Amendment Agreement and any other documents necessary for the transactions contemplated by this Amendment Agreement, on its behalf; and
|
|
(iii)
|
attaching certified true copies of valid proof of identity in respect of the persons signing this Amendment Agreement (and any other documents necessary for the
|
|
|
transactions contemplated by this Amendment Agreement) on behalf of the Guarantors;
|
|
(e)
|
Power of Attorney (notarised and legalised if requested by the Agent); and
|
|
(f)
|
Directors/Secretary's Certificate, certifying and attaching constitutional documents, authorisations, etc.
|
|
(a)
|
This Agreement;
|
|
(b)
|
Amendments agreements to the Mortgages; and
|
|
(c)
|
Any other Finance Document.
|
|
(a)
|
Evidence satisfactory to the Agent that amendments corresponding to the amendments referred to in Clause 3 (Amendments to the Facility Agreement) have been or will be effected in the Deutsche Bank Facilities;
|
|
(b)
|
Evidence satisfactory to the Agent to enable the Agent to make the assessment referred to in Clause 3.11 of this Amendment Agreement;
|
|
(c)
|
Evidence that all fees, costs and expenses, as payable on or prior to the Effective Date, pursuant to the provisions in this Amendment Agreement or the request from the Borrower dated 22 February 2012, have or will be paid on its due date;
|
|
(d)
|
Evidence of ownership and corporate structure of the Restricted Group;
|
|
(e)
|
"Know your customer" documents and information required by the Lenders; and
|
|
(f)
|
An addendum to the GIEK Guarantee.
|
|
(a)
|
Legal opinion from Holland & Knight LLP relating to Marshall Islands law issues;
|
|
(b)
|
Legal opinion from Bugge, Arentz-Hansen & Rasmussen relating to Norwegian law issues; and
|
|
(c)
|
Any such other favourable legal opinions in form and substance satisfactory to the Agent (on behalf of all the Finance Parties) from lawyers appointed by the Agent on matters concerning all relevant jurisdictions.
|
(1)
|
DRILL RIGS HOLDINGS INC., Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
|
(2)
|
THE COMPANIES named as Guarantors on the execution pages hereof as guarantors (the "Guarantors");
|
(3)
|
THE FINANCIAL INSTITUTIONS named as Banks on the execution page hereof as banks (the "Banks");
|
(4)
|
DNB BANK ASA, Stranden 21, NO-0021 Oslo, Norway as guarantee bank (the "Guarantee Bank");
|
(5)
|
DNB BANK ASA, Stranden 21, NO-0021 Oslo, Norway as mandated lead arranger and bookrunner and HSH NORBANK AG, Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Germany, NORDEA BANK FINLAND PLC, Aleksis Kiven katu 9, FIN-00020 Nordea, Helsinki, Finland and SKANDINAVISKA ENSKILDA BANKEN AB (PUBL), SE-106 40 Stockholm, Sweden as mandated lead managers (the "Arrangers");
|
(6)
|
DNB BANK ASA, Stranden 21, NO-0021 Oslo, Norway as agent and security trustee (the "Agent").
|
|
WHEREAS
|
(A)
|
the Parties have agreed that Ocean Rig UDW shall become a Guarantor under the Facility Agreement and to make certain amendments to the Facility Agreement;
|
1.
|
The wording of the defmition of "Additional Guarantor" in Clause 1.1 (Definitions) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
2.
|
The following new definitions shall be inserted in Clause 1.1 (Definitions) of the Facility Agreement:
|
3.
|
The wording of Clause 13.2 (Set-off) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
|
"(a)
|
Without prejudice to any other rights which it may have, each Finance Party may at any time, at its discretion and without prior notice, apply any balance (whether then due or not) which then stands to the credit of any of the Obligors (other than UDW) at any branch or other office of that Finance Party in any country in or towards satisfaction of any amount then due from the Obligors (other than UDW) to that Finance Party under any of the Finance Documents and, for that purpose, may:
|
|
(i)
|
break, or change the maturity of all or part of a deposit of an Obligor(other than UDW);
|
|
(ii)
|
convert all or any part of a deposit or other credit balance from one currency into another; and
|
|
(iii)
|
enter into any other transaction or make any entry with regard to the credit balance which the relevant Finance Party considers appropriate.
|
|
(b)
|
For the purposes of paragraph (a) above, an amount payable by an Obligor (other than UDW) to the Agent for distribution to, or for the account of a Bank shall be treated as a sum due to that Bank"
|
4.
|
The wording of paragraph (a) of Clause 22.2 (Financial information) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
|
(i)
|
as soon as reasonably practicable after the same are available (and in any event within 120 days after the end of each financial year), the unaudited consolidated accounts of the Parent and the audited consolidated accounts of UDW, in each case including balance sheet, profit and loss statement and cash flow analysis for that financial year;
|
|
(ii)
|
as soon as reasonably practicable after the same are available (and in any event within 60 days after the end of the relevant reporting period), the quarterly unaudited consolidated accounts of the. Parent and UDW, together with updated liquidity forecasts of the Parent; and
|
|
(iii)
|
such other information in respect of the business, properties or condition, financial or otherwise, of each of the Obligors as the Agent may from time to time reasonably request,
|
5.
|
The wording of paragraph (v) of Clause 22.7 (Notification of certain events) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
6.
|
The wording of paragraph (a) Clause 22.18 (Financial Indebtedness restrictions) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
7.
|
The wording of paragraph (a) Clause 22.19 (Merger and reconstruction restrictions) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
8.
|
The wording of paragraph (c) Clause 22.20 (Disposal restrictions) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
9.
|
The wording of Clause 22.21 (Dividend restrictions) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
10.
|
The wording of paragraph (a) Clause 22.25 (Hedging policy) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
11.
|
The wording of Clause 24.6 (Cross-default) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
|
(i)
|
any of its Financial Indebtedness (other than the obligations under the Finance Documents) is not paid when due (after the expiry of any originally applicable grace period);
|
|
(ii)
|
any of its Financial Indebtedness where it is a guarantor is not paid, unless contested in good faith, when due;
|
|
(iii)
|
any of its Financial Indebtedness:
|
|
a.
|
becomes prematurely due and payable;
|
|
b.
|
is placed on demand; or
|
|
c.
|
is declared by a creditor to be prematurely due and payable or being placed on demand,
|
|
(iv)
|
any commitment for its Financial Indebtedness is cancelled or suspended as a result of an event of default (howsoever described),
|
12.
|
The wording of Clause 24.9 (Insolvency) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
|
"(a)
|
Any member of the Group or UDW is, or for the purpose of law is deemed to be, unable to pay its debts as they fall due by reason of actual or anticipated financial difficulties or becomes insolvent, or admits inability or intention not to pay its debts as they are due; or
|
|
(b)
|
any member of the Group or UDW, by reason solely of financial difficulties, begins negotiations with its creditors with a view to the readjustment or rescheduling of any of its indebtedness; or any step is taken with a view to an arrangement with its creditors; or
|
|
(c)
|
a meeting of any member of the Group or UDW is convened for the purpose of considering any resolution for its winding-up or its administration or any such resolution is passed, ordered, or requested; or
|
|
(d)
|
any other step (including petition (other than a frivolous or vexatious petition which is contested in good faith or set aside within 30 days after a Borrower or the relevant member of the Group or UDW (as the case may be) became aware of the same), proposal or convening a meeting) is taken with a view to the administration,
|
13.
|
The wording of Clause 24.10 (Appointment of receiver etc.) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
14.
|
The wording of Clause 24.11 (Analogous proceedings) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
15.
|
The wording of paragraph (a) (viii) of Clause 30.2 (Exceptions) of the Facility Agreement shall be deleted in its entirety and replaced with the following wording:
|
16.
|
Each Obligor hereby confirms and agrees that each Security Document to which it is a party shall continue in full force and effect notwithstanding the amendments to the Facility Agreement set out in this Addendum No. 2.
|
17.
|
Each Obligor represents and warrants to each Finance Party that the representations and warranties in Clause 21 (Representations and warranties) of the Facility Agreement remain true and correct and that no Event of Default has occurred or will occur as a consequence of the entering into of this Addendum No. 2 or the compliance herewith.
|
18.
|
The Borrower shall upon demand pay to the Agent the amount of all reasonable costs and expenses (including external legal fees) properly incurred by the Agent in connection with the negotiation, preparation, printing, execution and registration of this Addendum No. 2, any other documents referred to in this Addendum No. 2.
|
19.
|
This Addendum No. 2 and the amendments of the Facility Agreement agreed herein (other than Clause 18 hereof, which shall become effective on the date hereof) shall become effective on the date the Agent has notified the Borrower and the Banks that it has received all of the documents set out in Schedule 1 to this Addendum No. 2 in a form and substance satisfactory to the Banks, or on such earlier date as may be determined by the Agent (acting on the instructions of the Banks) and notified to the Borrower and the Banks in writing (the "Effective Date").
|
20.
|
Words and expressions used herein shall have the same meaning when used herein as set out in the Facility Agreement unless expressly set out herein or the context otherwise requires.
|
21.
|
Except as expressly modified by this Addendum No. 2, all terms and provisions of the Facility Agreement shall remain in full force and effect and are hereby ratified and confirmed in all respects by the parties as if herein set forth in their entirety. All references in the Facility Agreement to "this Agreement", "hereof'", "hereby", "hereto", and the like shall, upon the occurrence of the Effective Date, mean the Facility Agreement as hereby amended.
|
22.
|
This Addendum No. 2 is a Finance Document.
|
23.
|
This Addendum No. 2 shall be governed by Norwegian law.
|
24.
|
The courts of Norway have exclusive jurisdiction to settle any dispute arising out of or in connection with this Addendum No. 2 (including a dispute regarding the existence, validity or termination of this Agreement) (a "Dispute"), and any Dispute shall be referred to Oslo district court as the court of first instance.
|
25.
|
Without prejudice to any other mode of service, each Obligor:-
|
|
(i)
|
irrevocably appoints Ocean Rig AS of Vestre Svanholmen nr. 6, Forus, NO-4313 Sandnes, Norway, as its agent for service of process relating to any proceedings before the Norwegian courts in connection with this Addendum No. 2;
|
|
(ii)
|
agrees that failure by its process agent to notify it of the process will not invalidate the proceedings concerned; and
|
|
(iii)
|
consents to the service of process to any such proceedings before the Norwegian courts by prepaid posting of a copy of the process to its address set out in this Agreement or any Accession Agreement to which it is a party, or its address at any later time notified to the Agent in writing.
|
|
(a)
|
its articles of association, articles of incorporation and by-laws (as the case may be);
|
|
(b)
|
a certificate of registration, incorporation or goodstanding;
|
|
(c)
|
a resolution of its board of directors authorising it to execute this Addendum No. 2;
|
|
(d)
|
where required, a resolution of its shareholders approving the resolutions referred to in paragraph (c) above;
|
|
(e)
|
if not included in the resolutions referred to in paragraph (c) above, a power of attorney to its representatives for the execution and registration of this Addendum No. 2; and
|
|
(f)
|
such other documents and evidence as the Agent (or any Bank through the Agent) shall from time to time require, based on law and regulations applicable from time to time and the Banks' own internal guidelines applicable from time to time to identify the Borrowers and the other Obligors (including certified copies of the passport of each director of each Obligor and documentation evidencing the ultimate legal and beneficial owner or owners of such entities) and any other persons involved or affected by the transaction(s) contemplated by this Agreement.
|
2.
|
Certified copies of all approvals, authorisations and consents required by any government or other authority in order for each of the Obligors to enter into and perform its obligations under this Addendum No. 2.
|
3.
|
The following documents and evidence in respect of the accession by UDW to the Facility Agreement as an Additional Guarantor:
|
|
(a)
|
a resolution of its board of directors authorising the execution of the Accession Agreement;
|
|
(b)
|
if not included in the resolutions referred to in paragraph (a) above, a power of attorney to its representatives for the execution and registration of the Accession Agreement;
|
|
(c)
|
certified copies of all approvals, authorisations and consents required by any government or other authority in order for UDW to enter into and perform its obligations under the Accession Agreement; and
|
|
(d)
|
the Accession Agreement duly executed by the Parent and UDW.
|
4.
|
Evidence of the acceptance of appointment by each service of process agent appointed or required to be appointed under this Addendum No. 2 or the Facility Agreement.
|
5.
|
Favourable legal opinions in form and substance satisfactory to the Agent from lawyers appointed by the Agent on matters concerning all relevant jurisdictions.
|
Clause
|
Page
|
|
1.
|
Interpretation
|
1
|
2.
|
Facilities
|
36
|
3.
|
Conditions Precedent
|
37
|
4.
|
Utilisation
|
39
|
5.
|
Repayment
|
43
|
6.
|
Prepayment and Cancellation
|
43
|
7.
|
Interest
|
48
|
8.
|
Terms
|
50
|
9.
|
Market Disruption
|
51
|
10.
|
Taxes
|
52
|
11.
|
Increased Costs
|
54
|
12.
|
Accounts
|
55
|
13.
|
Payments
|
61
|
14.
|
Representations and Warranties
|
64
|
15.
|
Information Covenants
|
71
|
16.
|
General Covenants
|
76
|
17.
|
Insurances
|
95
|
18.
|
Default
|
99
|
19.
|
Security
|
104
|
20.
|
The Administrative Parties
|
104
|
21.
|
Evidence and Calculations
|
110
|
22.
|
Fees
|
110
|
23.
|
Indemnities and Break Costs
|
110
|
24.
|
Expenses
|
114
|
25.
|
Waiver of Consequential Damages
|
114
|
26.
|
Amendments and Waivers
|
115
|
27.
|
Changes to the Parties
|
116
|
28.
|
Disclosure of Information
|
119
|
29.
|
Set-Off
|
119
|
30.
|
Pro Rata Sharing
|
120
|
31.
|
Severability
|
121
|
32.
|
Counterparts
|
121
|
33.
|
Notices
|
121
|
34.
|
Language
|
123
|
35.
|
Governing Law
|
123
|
36.
|
Enforcement
|
123
|
Schedule
|
|||
1.
|
Original Lenders
|
125
|
|
2.
|
Conditions Precedent
|
126
|
|
Part 1
|
Incidental Costs Loan
|
126
|
|
Part 2
|
Instalment Loan 1
|
129
|
|
Part 3
|
Instalment Loan 2
|
130
|
|
Part 4
|
Instalment Loan 3
|
131
|
|
Part 5
|
Delivery Loan
|
132
|
|
Part 6
|
Incidental Vessel Costs Loan
|
132
|
|
3.
|
Form of Request
|
137
|
|
4.
|
Form of Transfer Certificate
|
139
|
|
5.
|
Loan Repayment Schedule
|
141
|
|
6.
|
Calculation Certificate
|
142
|
|
7.
|
Incidental Vessel Costs
|
143
|
|
8.
|
Calculation of the Mandatory Cost
|
144
|
|
Appendix
|
|||
1.
|
Form of Delivery General Assignment
|
142
|
|
2.
|
Form of Mortgage
|
143
|
|
3.
|
Form of Charter Assignment
|
144
|
|
4.
|
Approved Budget
|
145
|
|
5.
|
Form of Petrobras Charter Assignment
|
146
|
|
6.
|
Form of Services Contract Assignment
|
147
|
|
Signatories
|
149
|
(1)
|
DRILLSHIP SKOPELOS OWNERS INC. a corporation incorporated in the Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as borrower (the Owner);
|
(2)
|
DEUTSCHE BANK AG, LONDON BRANCH as bookrunner and mandated lead arranger and bookrunner (in this capacity the Bookrunner and Mandated Lead Arranger);
|
(3)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Lenders) as original lenders (the Original Lenders);
|
(4)
|
DEUTSCHE BANK AG, LONDON BRANCH as swap bank (in this capacity a Swap Bank);
|
(5)
|
DEUTSCHE BANK LUXEMBOURG S.A. as facility agent (in this capacity the Facility Agent); and
|
(6)
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT acting through its office at Adolphsplatz 7, 20457 Hamburg, Germany as security trustee (in this capacity the Security Trustee).
|
1.
|
INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
The Owner Accounts;
|
|
(b)
|
The Bareboat Charterer Accounts; and
|
|
(c)
|
The Operator Account.
|
|
(a)
|
during the Pre-Completion Period, the Contract Price, the Incidental Costs, any other costs approved by the Lenders and any other costs and expenses incurred or to be incurred in relation to the construction of the Vessel and containing sufficient information and details to enable the Equity Collateral to be calculated; and
|
|
(b)
|
during the Post-Completion Period:
|
|
(i)
|
the anticipated Earnings;
|
|
(ii)
|
the anticipated Operating Expenses;
|
|
(iii)
|
the anticipated CAPEX Expenses;
|
|
(iv)
|
the anticipated Bareboat Charterer Earnings during the Bareboat Charter Period;
|
|
(v)
|
the anticipated Operator Earnings during the Operator Period,in each case of the Owner, the Bareboat Charterer and the Operator as relevant, for a financial year of t he Owner, the Bareboat Charterer and the Operator as relevant, agreed by the board of directors of the Owner, the Bareboat Charterer and the Operator as relevant, (based on the good faith estimates of the officers of the Owner, the Bareboat Charterer and the Operator as relevant, and the Manager) and approved by the Facility Agent in accordance with Clause 15.3 (Annual Budget and reports).
|
|
(a)
|
during the Pre-Completion Period, the Pre-Completion Margin; or
|
|
(b)
|
during the Post-Completion Period, the Post-Completion Margin, as the case may be.
|
|
(a)
|
for the Incidental Costs Loan, the Incidental Costs Loan Availability Period;
|
|
(b)
|
for the Instalment Loan 1, the Instalment Loan 1 Availability Period;
|
|
(c)
|
for the Instalment Loan 2, the Instalment Loan 2 Availability Period;
|
|
(d)
|
for the Instalment Loan 3, the Instalment Loan 3 Availability Period;
|
|
(e)
|
for the Delivery Loan, the period from and including the Utilisation Date for the immediately preceding Loan (if any) to and including the Petrobras Acceptance Longstop Date;
|
|
(f)
|
for the Undrawn Amount Loan, the period from and including the date falling ten (10) Business Days after the Final Completion Date to and including the date falling thirty (30) Business Days after the Final Completion Date; and
|
|
(g)
|
for an Incidental Vessel Costs Loan, the period from and including the date of this Agreement to and including the Final Completion Date.
|
|
(a)
|
the aggregate of all costs payable or reasonably expected to be payable by the Owner to the Builder under the Shipbuilding Contract; less
|
|
(b)
|
the aggregate of the Expected Contract Price and any Balancing Equity Contributions already paid by the Owner into the Proceeds Account in accordance with Clause 12.2 (Proceeds Account).
|
|
(a)
|
freights, passage and hire moneys (howsoever earned), including, for the avoidance of doubt, charterhire, charterhire performance bonuses and any mobilisation fees payable under the Petrobras Brasil Charter;
|
|
(b)
|
remuneration for salvage and towage services;
|
|
(c)
|
demurrage and detention moneys;
|
|
(d)
|
all moneys and claims in respect of the requisition for hire of the Vessel;
|
|
(e)
|
payments received in respect of off-hire insurance; and
|
|
(f)
|
any damages for breach or payments for termination of the Petrobras Brasil Charter.
|
|
(a)
|
any material breach by the Bareboat Charterer of the terms of the Bareboat Charter, which material breach is not cured by the date which falls 20 days after the date on which the Facility Agent gives written notice to the Bareboat Charterer of the breach and such breach is not remedied, or otherwise compensated for, in each case, to the satisfaction of the Majority Lenders within such period or if the matter has been referred to arbitration within that 20 day period, upon the earlier of a settlement being reached in respect of such arbitration and 15 days after the receipt of the final arbitration award; or
|
|
(b)
|
the termination of the Bareboat Charter by the Owner or the Bareboat Charterer for any reason whatsoever.
|
|
(a)
|
the period from (and including) the Final Completion Date of the Vessel to (and excluding) the first Repayment Date; and
|
|
(b)
|
each subsequent period from (and including) a Repayment Date to (and excluding) the next Repayment Date or, as the case may be, the Final Maturity Date.
|
|
(a)
|
its rights under that Drilling Charter; and
|
|
(b)
|
its rights under any applicable Charterer Parent Guarantee.
|
|
(a)
|
any material breach by the Charterer of the terms of a Drilling Charter or, as applicable, by the Charterer Parent of the terms of a Charter Parent Guarantee which material breach is not cured by the date which falls 20 days after the date on which the Facility Agent gives written notice to the Owner of the breach and such breach is not remedied, or otherwise compensated for, in each case, to the satisfaction of the Majority Lenders within such period or if the matter has been referred to arbitration within that 20 day period, upon the earlier of a settlement being reached in respect of such arbitration and 15 days after the receipt of the final arbitration award; or
|
|
(b)
|
the termination of a Drilling Charter by the Owner or the Charterer; or
|
|
(c)
|
the termination of the Petrobras Brasil Charter by the Bareboat Charterer during the Bareboat Charter Period, or at any time by Petrobras Brasil for any reason.
|
|
(a)
|
for an Original Lender, the amount set opposite its name in Schedule 1 (Original Lenders) under the heading "Commitments" and the amount of any other Commitment it acquires; and
|
|
(b)
|
for any other Lender, the amount of any other Commitment it acquires, to the extent not cancelled, transferred or reduced under this Agreement.
|
|
(a)
|
the Expected Contract Price; and
|
|
(b)
|
the total amount actually paid to the Builder by or on behalf of the Owner under the Shipbuilding Contract, as adjusted in accordance with the provisions of the Shipbuilding Contract.
|
|
(a)
|
in the case of an actual total loss, on the actual date and at the time the Vessel was lost or, if such date is not known, on the date on which the Vessel was last reported;
|
|
(b)
|
in the case of a constructive total loss, upon the date and at the time notice of abandonment is given to the Insurers for the time being (provided a claim for total loss is admitted by such Insurers) or, if such Insurers do not forthwith admit such a claim, at the date and at the time at which either a total loss is subsequently admitted by the Insurers or a total loss is subsequently adjudged by a competent court of law or arbitration tribunal to have occurred;
|
|
(c)
|
in the case of a compromised, agreed or arranged total loss, on the date upon which a binding agreement as to such compromised, agreed or arranged total loss has been entered into by the Insurers;
|
|
(d)
|
in the case of requisition for title or other compulsory acquisition, on the date upon which the relevant requisition for title or other compulsory acquisition occurs; or
|
|
(e)
|
in the case of capture, seizure, arrest, detention, or confiscation of the Vessel by any government or by persons acting or purporting to act on behalf of any government, government authority or any other person or entity which deprives the Owner of the Vessel or, as the case may be, the Charterer (and in the case of the Petrobras Brasil Charter, the Bareboat Charterer during the Bareboat Charter Period) of the use of the Vessel for more than 60 days, upon the expiry of the period of 60 days after the date upon which the relevant capture, seizure, arrest, detention or confiscation occurred.
|
|
(a)
|
Financing Costs accruing; and
|
|
(b)
|
Financing Principal payable (other than as a result ofa prepayment obligation), in that period less any amounts accruing for payment to the Owner in that period under a Swap Agreement.
|
|
(a)
|
an Event of Default; or
|
|
(b)
|
an event or circumstance which would be (with the expiry of a grace period, the giving of notice or the making of any determination under the Finance Documents or any combination of them) an Event of Default.
|
|
(a)
|
freights, passage and hire moneys (howsoever earned), including, for the avoidance of doubt, charterhire and charterhire performance bonuses payable under any Drilling Charter or the Bareboat Charter;
|
|
(b)
|
Liquidated Damages Payments;
|
|
(c)
|
remuneration for salvage and towage services;
|
|
(d)
|
demurrage and detention moneys;
|
|
(e)
|
all moneys and claims in respect of the requisition for hire of the Vessel;
|
|
(f)
|
payments received in respect of off-hire insurance;
|
|
(g)
|
damages for breach or payments for termination of a Drilling Charter or any other contract for the employment of the Vessel.
|
|
(a)
|
any land including, without limitation, surface land and sub-surface strata, sea bed or river bed under any water (as referred to below) and any natural or man-made structures;
|
|
(b)
|
water including, without limitation, coastal and inland waters, surface waters, ground waters and water in drains and sewers;
|
|
(c)
|
air including, without limitation, air within buildings and other natural or man-made structures above or below ground; and
|
|
(d)
|
flora, fauna and ecological systems.
|
|
(a)
|
pollution or contamination of the Environment, including any remediation of any pollution or contamination on the restoration or repair of any damage to the Environment;
|
|
(b)
|
the protection of the Environment and human health or safety or any living organisms which inhabit the Environment or any ecological system;
|
|
(c)
|
the generation, manufacture, processing, distribution, use (including abuse), treatment, storage, deposit, disposal, transport or handling of Hazardous Materials;
|
|
(d)
|
the Release or other form of transmission into the Environment of noise, vibration, dust, fumes, gas, odours, smoke, steam, effluvia, heat, light, radiation (of any kind), infection, electricity or any Hazardous Material and any matter or thing capable of constituting a nuisance or an actionable tort or breach of statutory duty of any kind in respect of such matters; and
|
|
(e)
|
the provision and maintenance of bonds, guarantees or other forms of financial assurance required by any Governmental Entity in connection with activities that could have an adverse effect on the Environment.
|
|
(a)
|
the proportion of claims for general average, salvage and salvage charges which are not recoverable as a result of the value at which the Vessel is assessed for the purpose of such claims exceeding her hull and machinery insured value; and
|
|
(b)
|
collision liabilities not recoverable in full under the hull and machinery insurance by reason of those liabilities exceeding such proportion of the insured value of the Vessel as is covered by the hull and machinery insurance.
|
|
(a)
|
the date of actual delivery of the Vessel to the Charterer under the Drilling Charter and unconditional acceptance by the Charterer under the terms thereof; and
|
|
(b)
|
the date of confirmation to the Facility Agent from the Technical Adviser that the Vessel's design and performance fulfils the technical specifications required under the Shipbuilding Contract and the Drilling Charter.
|
|
(a)
|
this Agreement;
|
|
(b)
|
the Amendment and Restatement Agreement;
|
|
(c)
|
the Amendment and Restatement Agreement No.2;
|
|
(d)
|
the Deed of Release and Amendment;
|
|
(e)
|
each Security Document;
|
|
(f)
|
the DPP;
|
|
(g)
|
the DPP Deed of Accession
|
|
(h)
|
DPP Deed of Accession Amendment and Restatement;
|
|
(i)
|
the Dutch Parallel Debt Agreement;
|
|
(j)
|
the GIEK Security Trustee Letter;
|
|
(k)
|
each Swap Agreement;
|
|
(l)
|
each Fee Letter;
|
|
(m)
|
each Transfer Certificate;
|
|
(n)
|
each Account Bank Mandate; and
|
|
(o)
|
any other document designated as such by the Facility Agent and the Owner.
|
|
(a)
|
moneys borrowed;
|
|
(b)
|
any amount raised by acceptance under any acceptance credit agreement (including any dematerialised equivalent);
|
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or other similar instrument;
|
|
(d)
|
any redeemable preference share;
|
|
(e)
|
the amount of any liability in respect of a lease or hire purchase contract which would, in accordance with IFRS, be treated as a finance or capital lease;
|
|
(f)
|
receivables sold or discounted (otherwise than on a non-recourse basis);
|
|
(g)
|
the acquisition cost of any asset or service to the extent payable after its acquisition or possession by the party liable where the advance or deferred payment is arranged primarily as a method of raising finance or of financing the acquisition of that asset or service;
|
|
(h)
|
any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then mark to market value of the derivative transaction will be used to calculate its amount);
|
|
(i)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing other than trade credits incurred in the ordinary course of business with credit terms of no longer than 90 days;
|
|
(j)
|
any counter-indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; or
|
|
(k)
|
the amount of any liability in respect of any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in the above paragraphs.
|
|
(a)
|
interest, fees and any other costs or expenses payable under the Finance Documents;
|
|
(b)
|
any Swap Costs; and
|
|
(c)
|
any Tax in respect of any of the above.
|
|
(a)
|
any natural government, political subdivision thereof, or local jurisdiction therein; and
|
|
(b)
|
any instrumentality, board, commission, court or agency thereof, however constituted.
|
|
(a)
|
each of the fees referred to in Clause 22 (Fees) and payable under the terms of the Fee Letters during the Pre-Completion Period;
|
|
(b)
|
any and all costs and expenses which are payable by the Owner to the Secured Parties pursuant to Clause 24.1 (Initial costs) within a period of three (3) months from the date of this Agreement; and
|
|
(c)
|
interest in the Pre-Completion Period calculated and payable in accordance with Clause 7.1(a).
|
|
(a)
|
reasonable and properly incurred costs paid by the Owner in connection with the Vessel in excess of the Contract Price, in respect of those items detailed in Schedule 7 (Incidental Vessel Costs), for which supporting invoices or receipts have been provided to the Security Trustee;
|
|
(b)
|
the Initial Debt Service Reserve Contribution; and
|
|
(c)
|
any interest accrued and payable to the Eksportfinans Lenders in respect of the Eksportfinans Loans drawn under this Facility.
|
|
(a)
|
an additional or increased cost;
|
|
(b)
|
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital; or
|
|
(c)
|
a reduction of an amount due and payable under any Finance Document, which is incurred or suffered by a Finance Party or any of its Affiliates but only to the extent attributable to that Finance Party having entered into any Finance Document or funding or performing its obligations under any Finance Document.
|
|
(a)
|
an Original Lender; or
|
|
(b)
|
any person which becomes a Party in accordance with Clause 27.2 (Assignments and transfers by Lenders),
|
|
(a)
|
the applicable Screen Rate; or
|
|
(b)
|
if no Screen Rate is available for the relevant currency or for any Term of that Loan or overdue amount, the arithmetic mean (rounded upward to four decimal places) of the rates, as supplied to the Security Trustee at its request, quoted by the Reference Banks to leading banks in the London interbank market,
|
|
(a)
|
whose share in the outstanding Loans and whose undrawn Commitments then aggregate not less than 80% of the aggregate of all the outstanding Loans and the undrawn Commitments of all the Lenders and who include at least (but without limitation) one (1) Commercial Lender whose share in the outstanding Loans and whose undrawn Commitments in connection with the Loans then aggregate more than 1 % of the aggregate of all the outstanding Loans and the undrawn Commitments of the Lenders; or
|
|
(b)
|
if there is no Loan then outstanding, whose undrawn Commitments then aggregate not less than 80% of the Total Commitments and who include at least (but without limitation) one (1) Commercial Lender whose undrawn Commitments in connection with the Loans then aggregate more than 1 % of the aggregate of all the undrawn Commitments of the Lenders; or
|
|
(c)
|
if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated not less than 80% of the Total Commitments immediately before the reduction and who include at least (but without limitation) one (1) Commercial Lender whose undrawn Commitments in connection with the Loans aggregated more than 1 % of the aggregate of all the outstanding Loans and the undrawn Commitments of the Lenders,
|
|
(a)
|
the net present value of the expected Net Cash Flow to be derived from each existing Drilling Charter as calculated by the Facility Agent in its sole discretion on the basis of a discount rate of 6% per annum and information then available to it and on the basis that:
|
|
(i)
|
during the first year of each Drilling Charter the Operating Expenses shall be US$150,000 per day and utilization rate of 95% for the Vessel; and
|
|
(ii)
|
thereafter the Operating Expenses and the utilization rate of the Vessel shall be the Operating Expenses actually incurred and utilization rate actually achieved during the previous 12 month period of the relevant Drilling Charter; and
|
|
(b)
|
the forecasted fair market value of the Vessel derived from a valuation of the Vessel obtained from one Approved Broker with or without physical inspection of the Vessel (as the Security Trustee may reasonably require) on the basis of a sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing buyer and a willing seller, on an "as is, where is" basis, as at the latest expiry date of the then existing Drilling Charters.
|
|
(a)
|
the ability of the Owner, the Bareboat Charterer during the Bareboat Charter Period, the Operator during the Operator Period or Ocean Rig to perform its obligations under the Transaction Documents;
|
|
(b)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purported to be granted pursuant to any Finance Document; or
|
|
(c)
|
any right or remedy of a Finance Party in respect of a Finance Document.
|
|
(a)
|
Gross Revenues received; minus
|
|
(b)
|
Operating Expenses and CAPEX Expenses in each case payable by the Owner.
|
|
(a)
|
all present and future moneys and claims which are earned by or become payable to or for the account of the Operator under the Services Contract or any other services contract for the employment of the Vessel in connection with the provision of third party materials and services and operating services in accordance with the Services Contract and the reimbursement of expenses paid by or on behalf of the Operator in connection with the performance of its obligations under the Services Contract or any other services contract for the employment of the Vessel;
|
|
(b)
|
all moneys payable to the Operator under the Services Contract, including but not limited to damages for breach or payments for termination of the Services Contract, and in respect of any proceeds of any litigation under the Services Contract and in respect of the insurance effected or to be effected by Petrobras Brasil pursuant to the terms and provisions of the Services Contract, as applicable or otherwise and all the Operator's joint or other interest in connection with such insurances; and
|
|
(c)
|
all other amounts payable to the Operator under the Services Contract.
|
|
(a)
|
Security Interests created by the Security Documents;
|
|
(b)
|
liens for unpaid crew's wages including wages of the master and stevedores employed by the Vessel, outstanding in the ordinary course of business for not more than one month after the due date for payment;
|
|
(c)
|
any Security Interest constituted by or securing any netting or set-off arrangement entered into in the normal course of the Owner's banking arrangements in respect of any bank accounts opened by it and which have not been secured in favour of the Finance Parties pursuant to the Security Documents;
|
|
(d)
|
liens for salvage;
|
|
(e)
|
liens for classification or scheduled dry-docking or for necessary repairs to the Vessel whose aggregate cost does not exceed US$10,000,000 at any one time in respect of the Vessel;
|
|
(f)
|
liens for collision;
|
|
(g)
|
liens for master's disbursements incurred in the ordinary course of business;
|
|
(h)
|
statutory and common law liens of carriers, warehousemen, mechanics, suppliers, materials men, repairers or other similar liens, including maritime liens, in each case arising in the ordinary course of business, due and outstanding for not more than one month whose aggregate value does not exceed US$10,000,000; and
|
|
(i)
|
any lien created or permitted to subsist with the prior written consent of the Security Trustee (acting on instructions of the Majority Lenders),
|
|
(a)
|
the Owner, the Bareboat Charterer during the Bareboat Charter Period, the Operator during the Operator Period and Ocean Rig; and
|
|
(b)
|
from time to time, any of the Builder, the Manager, any Charterer Parent and/or Charterer (but only to the extent, in any such case, that the same has or may in the future have, outstanding liabilities owing to the Owner, the Bareboat Charterer during the Bareboat Charter Period, the Operator during the Operator Period, Ocean Rig or any Finance Party under any Finance Document or Related Contract to which it is a party).
|
|
(a)
|
for the purpose of determining a Lender's share in a utilisation of a Facility, the proportion which its Commitment under that Facility bears to all the Commitments under that Facility; and
|
|
(b)
|
for any other purpose on a particular date:
|
|
(i)
|
the proportion which a Lender's share of the Loans (if any) bears to all the Loans;
|
|
(ii)
|
if there is no Loan outstanding on that date, the proportion which its Commitment bears to the Total Commitments on that date; or
|
|
(iii)
|
if the Total Commitments have been cancelled otherwise, the proportion which its Commitments bore to the Total Commitments immediately before being cancelled.
|
|
(a)
|
the Refund Guarantee;
|
|
(b)
|
the Shipbuilding Contract;
|
|
(c)
|
the Other Shipbuilding Contract;
|
|
(d)
|
the Obligatory Insurances;
|
|
(e)
|
each Drilling Charter;
|
|
(f)
|
any Charterer Parent Guarantee;
|
|
(g)
|
the Management Agreement;
|
|
(h)
|
the Management Agreement Assignment Agreement;
|
|
(i)
|
the Sister Shipbuilding Contract;
|
|
(j)
|
the Bareboat Charter; and
|
|
(k)
|
the Services Contract.
|
|
(a)
|
(i)
|
until the date falling immediately prior to the first anniversary of the Utilisation Date in respect of the Delivery Loan, the amount available to be transferred from the Proceeds Account pursuant to Clause 12.11 (Payments to the Debt Service Reserve Account prior to the Utilisation Date of the Delivery Loan) until such time as the balance thereof is the amount referred to in (ii) below; and
|
|
(ii)
|
thereafter, the aggregate amount required to pay the next scheduled principal and interest instalment under this Agreement on or before the next Repayment Date (with scheduled interest in respect of any Hedged Portion being deemed to be payable at the applicable Fixed Rate); and
|
|
(b)
|
the amount from time to time deposited pursuant to Clause 16.33(b)(ii) (Leverage Ratio), provided that the Required DSRA Balance shall not include any amounts transferred to the Debt Service Reserve Account in accordance with Clauses 12.4(b) and (c).
|
|
A
|
is the aggregate of B and C;
|
|
B
|
is the amount of all of the Loans (as defined in the Sister Loan Agreement) outstanding under the Sister Loan Agreement; and
|
|
C
|
is the amount of all of the Loans outstanding under this Agreement.
|
|
(a)
|
for the Instalment payable on the Instalment Loan 1 Utilisation Date, the lower of 15.45% of the Expected Contract Price and US$106,789,466;
|
|
(b)
|
for the Instalment payable on the Instalment Loan 2 Utilisation Date, the lower of 15.05% of the Expected Contract Price and US$104,040,750;
|
|
(c)
|
for the Instalment payable on the Instalment Loan 3 Utilisation Date, the lower of 15.05% of the Expected Contract Price and US$104,040,750;
|
|
(d)
|
for the Instalment payable on the Delivery Loan Utilisation Date, the lower of 40.125% of the Expected Contract Price and US$277,442,000.
|
|
(a)
|
the Mortgage;
|
|
(b)
|
the Mortgage Amendment Agreement;
|
|
(c)
|
the General Assignment;
|
|
(d)
|
the Share Charge;
|
|
(e)
|
the Bareboat Charterer Pledge of Shares;
|
|
(f)
|
the Bareboat Charterer Parent Pledge of Membership;
|
|
(g)
|
the Swap Agreement Assignment;
|
|
(h)
|
the Delivery General Assignment;
|
|
(i)
|
the Owner Accounts Charge Agreement;
|
|
(j)
|
the Bareboat Charterer Accounts Charge Agreement;
|
|
(k)
|
the Operator Account Management Agreement;
|
|
(l)
|
each Charter Assignment;
|
|
(m)
|
the Petrobras Charter Assignment;
|
|
(n)
|
the Services Contract Assignment;
|
|
(o)
|
the Bareboat Charter Assignment;
|
|
(p)
|
the Management Agreement Assignment;
|
|
(q)
|
the Management Agreement Assignment Side Letter;
|
|
(r)
|
the Floating Charge;
|
|
(s)
|
the Sponsor Guarantee;
|
|
(t)
|
the Ocean Rig Guarantee;
|
|
(u)
|
the Ocean Rig Guarantee Confirmation;
|
|
(v)
|
the Confirmatory Charge;
|
|
(w)
|
the Confirmatory Charge No.2;
|
|
(x)
|
the Bareboat Charterer Guarantee;
|
|
(y)
|
the Petrobras Consent;
|
|
(z)
|
the Bareboat Charterer Insurances Assignment; and
|
|
(aa)
|
any other document designated as such in writing by the Owner and the Facility Agent.
|
|
(a)
|
each Security Agreement; and
|
|
(b)
|
any other document evidencing or creating security over any asset of the Owner, or Ocean Rig, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator as relevant to secure any obligation of the Owner, or Ocean Rig or the Bareboat Charterer, the Bareboat Charterer Parent or the Operator as relevant to the Finance Parties or any of them under the Finance Documents.
|
|
(a)
|
the Operational Software;
|
|
(b)
|
the identity of the then current suppliers of the Operational Software;
|
|
(c)
|
all upgrades carried out in respect of the Operational Software or changes to the Software Licences; and
|
|
(d)
|
all Software Licences.
|
|
(a)
|
a subsidiary within the meaning of section 736 of the Companies Act 1985; and
|
|
(b)
|
unless the context otherwise requires, a subsidiary undertaking within the meaning of section 258 of the Companies Act 1985.
|
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of the Vessel;
|
|
(b)
|
requisition for title or other compulsory acquisition of the Vessel otherwise than by requisition for hire; and
|
|
(c)
|
capture, seizure, arrest, detention or confiscation of the Vessel by any Government Entity or by persons acting or purporting to act on behalf of any government or any other person or entity which deprives the Owner of the Vessel or, as the case may be, the Charterer, or as the case may be the Bareboat Charterer during the Bareboat Charter Period or the Operator during the Operator Period, of the use of the Vessel for more than 60 days after that occurrence.
|
|
(a)
|
the Drilling Charter is a Five Year Drilling Charter and the Sister Drilling Charter is (x) a Sister Five Year Drilling Charter or (y) the Approved Kithira Petrobras Charter; or
|
|
(b)
|
the Drilling Charter is a Five Year Drilling Charter and the Sister Drilling Charter is (x) a Sister Three Year Drilling Charter or (y) the Approved Kithira Petrobras Charter; or
|
|
(c)
|
the Drilling Charter is a Three Year Drilling Charter and the Sister Drilling Charter is (x) a Sister Five Year Drilling Charter or (y) the Approved Kithira Petrobras Charter,
|
(a)
|
In this Agreement, unless the contrary intention appears, a reference to:
|
|
(i)
|
an amendment includes a supplement, novation, restatement or re-enactment and amended will be construed accordingly;
|
|
(ii)
|
assets includes present and future properties, revenues and rights of every description;
|
|
(iii)
|
an authorisation includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration or notarisation;
|
|
(iv)
|
disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;
|
|
(v)
|
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money;
|
|
(vi)
|
a person includes any individual, company, corporation, unincorporated association or body (including a partnership, trust, joint venture or consortium), government, state, agency, organisation or other entity whether or not having separate legal personality and shall include its successors, permitted assignees and permitted transferees;
|
|
(vii)
|
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
|
(viii)
|
know your customer requirements are the identification checks that a Finance Party requests in order to meet its obligations under any Applicable Law to identify a person who is (or is to become) its customer;
|
|
(ix)
|
a currency is a reference to the lawful currency for the time being of the relevant country;
|
|
(x)
|
a Default being outstanding or continuing means that it has not been cured, remedied or waived;
|
|
(xi)
|
a provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;
|
|
(xii)
|
a Clause, a Subclause, an Appendix or a Schedule is a reference to a clause, subclause, appendix of, or a schedule to, this Agreement;
|
|
(xiii)
|
a Party or any other person includes its successors in title, permitted assigns and permitted transferees;
|
|
(xiv)
|
a Finance Document, Sister Finance Document, other document or security includes (without prejudice to any prohibition on amendments) any amendment to that Finance Document, Sister Finance Document or other document or security, including any change in the purpose of, any extension of or any increase in the amount of a facility or any additional facility;
|
|
(xv)
|
a time of day is a reference to London time; and
|
|
(xvi)
|
words importing the plural shall include the singular and vice versa.
|
(b)
|
Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
|
|
(i)
|
if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);
|
|
(ii)
|
if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and
|
|
(iii)
|
notwithstanding subparagraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.
|
(c)
|
Unless expressly provided to the contrary in a Finance Document, a person (other than any Secured Party or Affiliate of such Secured Party) who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any
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term of any Finance Document, no consent of any third party is required for any amendment (including any release or compromise of any liability) or termination of that Finance Document.
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(d)
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Unless the contrary intention appears or unless the context otherwise permits:
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(i)
|
a reference to a Party will not include that Party if it has ceased to be a party under this Agreement;
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(ii)
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a word or expression used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement; and
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(iii)
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any obligation of the Owner under the Finance Documents which is not a payment obligation remains in force in accordance with its terms for so long as any payment obligation of the Owner is or may be outstanding under the Finance Documents.
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(e)
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If, following the occurrence of an Event of Default which is continuing, any Finance Party acting reasonably considers that an amount paid to it under a Finance Document is capable of being avoided or otherwise set aside on the liquidation or administration of the payer or otherwise, then that amount shall not be considered to have been irrevocably paid for the purposes of that Finance Document.
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(f)
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The headings in this Agreement do not affect its interpretation.
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(g)
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Where the Owner requests any amendment, waiver or grace period in respect of any provision of the Transaction Documents which would conflict with any provision of the GIEK Guarantee or require consent from GIEK under the GIEK Guarantee, the Eksportfinans Lenders may request the Facility Agent to ask GIEK for a response to such request and the Facility Agent shall not be obliged to respond to the Owner until it receives a response from GIEK.
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(h)
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Where the Owner requests any amendment, waiver or grace period in respect of any provision of the Transaction Documents which would conflict with any provision of the KEXIM Guarantee or require consent from KEXIM, the KEXIM Lenders may request the Facility Agent to ask KEXIM for a response to such request and the Facility Agent shall not be obliged to respond to the Owner until it receives a response from KEXIM.
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(a)
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a winding-up, administration or dissolution includes bankruptcy faillissement) and dissolution (ontbinding);
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(b)
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a moratorium includes surseance van betaling and a moratorium is declared or occurs includes surseance verleend;
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(c)
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any step or procedure taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990);
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(d)
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a trustee in bankruptcy includes a curator;
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(e)
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an administrator includes a bewindvoerder; and
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(f)
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an attachment includes a beslag.
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(a)
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Subject to the terms of this Agreement, the Lenders make available to the Owner a term loan facility in a maximum aggregate amount equal to the Maximum Facility Amount.
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(b)
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The Facility shall be capable of being drawn up to the Maximum Facility Amount on the dates described in Clause 4.2(a) (Completion of Requests).
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(a)
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financing or refinancing the cost of construction of the Vessel pursuant to the Shipbuilding Contract;
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(b)
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financing such other items and costs as are included in the Vessel Cost; and
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(c)
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payment of amounts as described in Clause 4.1(e) (Giving of Requests).
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(a)
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Unless otherwise agreed in writing by all the Finance Parties:
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(i)
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the obligations of a Finance Party under the Finance Documents are several;
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(ii)
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failure by a Finance Party to perform its obligations does not affect the obligations of any other Party under the Finance Documents;
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(iii)
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no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;
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(iv)
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the rights of a Finance Party under the Finance Documents are separate and independent rights;
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(v)
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a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights; and
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(vi)
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a debt arising under the Finance Documents to a Finance Party is a separate and independent debt.
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(b)
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If at any time a Finance Party fails to pay when due its share of any Loan amount when required to do so, the Mandated Lead Arranger agrees that it shall consult with the Owner for a reasonable period of time and act in good faith to assist the Owner in resolving the matter, but at all times without any liability on the part of the Mandated Lead Arranger.
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(c)
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Each Swap Bank is a Party to this Agreement only in order to take the benefit of the rights given to the Finance Parties by this Agreement.
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(a)
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A Request in respect of any Loan may not be given until the Facility Agent has notified the Owner and the Lenders that it has received all of the documents and evidence set out in Schedule 2 (Conditions Precedent) in respect of the Loan the subject of that Request in form and substance satisfactory to the Facility Agent or that it expects to receive outstanding documents or evidence on or before the Utilisation Date of such Loan or, in the case of evidence on the payment of the Equity Contribution, Balancing Equity Contribution or Equity Collateral, on or before the date which falls one (1) Business Day after the date of service of the relevant Request to the Facility Agent (provided that it will be a condition precedent to the obligations of each Lender to advance such Loan that, as at the relevant Utilisation Date (or, in the case of evidence of the payment of the Equity Contribution, Balancing Equity Contribution or Equity Collateral, as at the date which falls one (1) Business Day after the date the Request is served), such outstanding documents or evidence have been received by the Facility Agent in form and substance satisfactory to the Facility Agent. The Facility Agent must give this notification to the Owner and the Lenders promptly upon being so satisfied.
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(b)
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That part of the Delivery Loan which relates to all or part of the Instalment payable on the Delivery Date shall, if the Delivery Date has not at such time occurred, be deposited by the Facility Agent into the account of [the Refund Guarantor]1 (the Escrow Account) with its correspondent bank in New York three Business Days prior to the proposed Delivery Date, subject to the following irrevocable instructions (addressed to [the Refund Guarantor] with a copy to the correspondent bank):
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(c)
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If the Delivery Date has not occurred at the time the Request for the Delivery Loan is served, the Owner undertakes with the Finance Parties not to sign a Protocol of Delivery and Acceptance in respect of the Vessel unless the Facility Agent has confirmed that the conditions precedent referred to in Clause 3.1(a) above in respect of the Delivery Loan above have been or will, simultaneously with such signing, be satisfied.
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(a)
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the Repeating Representations are correct in all material respects;
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(b)
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no Default or Mandatory Prepayment Event or Potential Mandatory Prepayment Event is outstanding or would result from the Loan;
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(c)
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the Facility Agent has received an officer's certificate from the Owner confirming that:
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(i)
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save as permitted by the Finance Documents, there have been no material amendments or variations agreed to the Related Contracts existing at such time that have not been agreed by the Facility Agent in accordance with the terms of this Agreement;
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(ii)
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no Related Contracts have been rescinded or terminated by any party to them;
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(iii)
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no action has been taken by (a) the Owner or (b) by any other party which might in any way render any Related Contract inoperative or unenforceable, in whole or in any part; and
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(iv)
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none of the events mentioned in Clauses 18.6 (Insolvency), 18.7 (Insolvency proceedings), 18.8 (Creditors' process), 18.9 (Cessation of business), or 18.10 (Failure to pay final judgment) has occurred, to the best of the Owner's knowledge and belief (acting with the proper due diligence), in respect of any of the Refund Guarantor, the Builder, the Manager, the Charterer Parent (if applicable) or the Charterer (if applicable); and
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(d)
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the Facility Agent has received such other documents which, based on legal advice received from the relevant advisers referred to in this Agreement are necessary to evidence the legality, validity and enforceability of the obligations of the parties to any Finance Document being delivered on such Utilisation Date.
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(a)
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on or before the Petrobras Acceptance Longstop Date, a technical memorandum issued by the Technical Adviser covering the relevant Workscope to be achieved by the Delivery Loan Utilisation Date and confirming that the construction milestones specified under Clause 16.29 (Construction Milestones) have been met;
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(b)
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on or before the date 90 days following the Amendment and Restatement Effective Date No. 2:
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(i)
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evidence that the Operator Account has been opened;
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(ii)
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a duly executed original of the Operator Account Management Agreement;
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(iii)
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a duly executed original of the Petrobras Consent;
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(iv)
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a duly executed original of the Petrobras Charter Assignment;
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(v)
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a duly executed original of the Services Contract Assignment,
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(a)
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The Owner may borrow a Loan by giving to the Facility Agent a duly completed Request.
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(b)
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Unless the Facility Agent otherwise agrees, the latest time for receipt by the Facility Agent of a duly completed Request is 11.00 a.m. three Business Days prior to the date of the proposed borrowing and, in respect of the Delivery Loan, three Business Days prior to the date on which that part of the Delivery Loan which relates to all or part of the Instalment payable on the Delivery Date must be deposited by the Facility Agent into the account of the Refund Guarantor in accordance with Clause 3.1(b) above. The Owner undertakes that any advance notices regarding expected payment dates of Instalments shall be promptly delivered to the Facility Agent at the same time as such notices are received by the Owner or the Manager, as the case may be, from the Builder. The Facility Agent shall provide copies of such advance notices promptly to KEXIM upon receipt of the same from the Owner and to the other Lenders upon request.
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(c)
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The Owner may, subject to Clauses 4.1(d) and 4.1(e), submit up to only four Requests, one in respect of each of the Instalment Loan 1, the Instalment Loan 2, the Instalment Loan 3, and the Delivery Loan (each an Instalment Loan).
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(d)
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Notwithstanding Clause 4.1(c), the Owner may submit one Request for the Incidental Costs Loan and Requests for Incidental Vessel Costs Loans in accordance with the provisions of Clause 4.2 (Completion of Requests).
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(e)
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Notwithstanding Clause 4.1(c), if on the Final Completion Date there is an Undrawn Amount, the Owner may, if the Facility Agent (acting on the instructions of all the Lenders who shall have full discretion in connection with such instructions) so agrees, and on such terms and subject to such conditions as the Facility Agent may, acting on such instructions, require, submit a Request for an
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(f)
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Each Request is irrevocable.
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(a)
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The Utilisation Date is a Business Day falling within the relevant Availability Period for that Loan and:
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(i)
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for an Instalment Loan (other than the Delivery Loan), is the date on which the corresponding Instalment is payable under the terms of the Shipbuilding Contract or, in the case of an Instalment Loan which is to be used to refinance an Instalment, is a date after the date on which the Owner has paid the corresponding Instalment to the Builder under the Shipbuilding Contract;
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(ii)
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for the Delivery Loan, is the Delivery Date; or
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(iii)
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for an Incidental Vessel Costs Loan:
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(A)
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for the first Incidental Vessel Costs Loan, is a date on or after the date of this Agreement; and
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(B)
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for the second Incidental Vessel Costs Loan, is a date not earlier than 31 October 2008 and for any other Incidental Vessel Costs Loan, is a date falling at least three (3) months after the previous Incidental Vessel Costs Loan Utilisation Date;
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(b)
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the requested Incidental Costs Loan is in an amount not exceeding the aggregate amount of:
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(i)
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the Incidental Loan Costs incurred in the period up to and including the Utilisation Date of the Incidental Costs Loan;
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(ii)
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the aggregate amount of the Approved Incidental Vessel Costs payable in the period up to and including the Utilisation Date of the Incidental Costs Loan and supported by invoices or receipts; and
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(iii)
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the aggregate estimated amount of Approved Incidental Vessel Costs which will become payable in the period up to and including the Utilisation Date of the Instalment Loan 1, supported by evidence satisfactory to the Facility Agent (acting in its sole discretion);
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(c)
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the requested Loan (other than the requested Incidental Costs Loan) is in an amount not exceeding:
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(i)
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if either:
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(A)
|
the Vessel Drilling Charter Date has occurred at least ten (10) Business Days prior to the relevant Utilisation Date; or
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(B)
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if a Drilling Charter and a Sister Drilling Charter have been entered into ten (10) Business Days prior to the relevant Utilisation Date; and
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(I)
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the Drilling Charter is a Five Year Drilling Charter and the Sister Drilling Charter is (x) a Sister Five Year Drilling Charter or (y) the Approved Kithira Petrobras Charter; or
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(II)
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the Drilling Charter is a Five Year Drilling Charter and the Sister Drilling Charter is (x) a Sister Three Year Drilling Charter or (y) the Approved Kithira Petrobras Charter; or
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(III)
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the Drilling Charter is a Three Year Drilling Charter and the Sister Drilling Charter is (x) a Sister Five Year Drilling Charter or (y) the Approved Kithira Petrobras Charter,
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(ii)
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if the conditions in Clause 4.2(c)(i) have not been met, a percentage of the Scheduled Instalment Amount or, as applicable the Approved Incidental Vessel Costs (in each case determined by the Facility Agent) to be derived from an iterative process in a manner that the expected LTC Ratio at the Utilisation Date following the advance of the Loan equals zero point four (0.4), together with the Incidental Loan Costs to be capitalised or, as the case may be, reimbursed on that Utilisation Date in accordance with Clause 4.4; and
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(d)
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the amount requested for any Loan when aggregated with:
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(i)
|
existing Loans advanced by the Lenders;
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(ii)
|
the amounts to be drawn down under any other Request issued for drawdown on the proposed Utilisation Date; and
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(e)
|
all amounts capitalised pursuant to Clause 4.4 do not exceed the Maximum Facility Amount; and
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(f)
|
subject to Clause 4.3, the amount of the Loan requested is apportioned pro rata to the Eksportfinans Loan, the KEXIM Loan and the Commercial Loan by reference to the proportion of the Total Commitments borne by the Commitments of the Eksportfinans Lenders, the KEXIM Lenders and Commercial Lenders respectively at the relevant time.
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(a)
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The Facility Agent must promptly notify each Lender of the details of the requested Loan and the amount of its share in that Loan (as calculated by the Facility Agent in accordance with this Clause 4.3).
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(b)
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No Eksportfinans Lender is obliged to participate in the Incidental Costs Loan or any Incidental Vessel Costs Loan.
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(c)
|
The amount of each Lender's share of each requested Instalment Loan will be its Pro Rata Share on the proposed Utilisation Date but adjusted so that the total amount lent by the Eksportfinans Lenders
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(i)
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they had participated to the extent of their Pro Rata Share in the Incidental Costs Loan and each Incidental Vessel Costs Loan drawn on or prior to the Utilisation Date of the relevant Instalment Loan; and
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(ii)
|
they were to participate to the extent of their Pro Rata Share in the relevant Instalment Loan,
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(d)
|
The Facility Agent shall calculate the amount to be lent by each of the Lenders in connection with each Instalment Loan and shall notify each of the Lenders of such amount as soon as practicable after receipt by the Facility Agent of the Request relating to that Instalment Loan.
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(e)
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No Lender is obliged to participate in a Loan if, as a result:
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(i)
|
its share in the Loans under the Facility would exceed its Commitment;
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(ii)
|
the Loans would exceed the Total Commitments;
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(iii)
|
in respect of the Eksportfinans Lenders, the aggregate of the Eksportfinans Loans would exceed the Maximum Eksportfinans Loan Amount;
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(iv)
|
in respect of the KEXIM Lenders, the aggregate of the KEXIM Loans would exceed the Maximum KEXIM Loan Amount; or
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(v)
|
in respect of the Commercial Lenders, the aggregate of the Commercial Loans would exceed the Maximum Commercial Loan Amount;
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(f)
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If the conditions set out in this Agreement have been met, each Lender must ensure that its share in the requested Loan will be available to the Facility Agent for the Owner through its Facility Office by 10.00 a.m. on the relevant Utilisation Date.
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(a)
|
During the Pre-Completion Period the Commitment fee payable in accordance with Clause 22.1 (Commitment fee), and interest calculated and payable in accordance with Clause 7.1 (a) and 7.1 (c) (other than any such Commitment fees or interest included in the Incidental Costs Loan or interest payable to the Eksportfinans Lenders under this Agreement) shall accrue and shall, on the last day of each Term during the Pre-Completion Period, be capitalised and added to the principal amount of the Loans outstanding.
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(b)
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The amount of any Incidental Loan Costs to be capitalised may not in any circumstances exceed, when aggregated with the Loans already made and amounts of Incidental Loan Costs already capitalised under the relevant Loan, the Maximum Facility Amount or cause the applicable LTC Ratio set out in Clause 4.2 (c) (i) or 4.2 (c) (ii) to be breached. Any Incidental Loan Costs due and payable which cannot be capitalised in accordance with this Clause 4.4 must be paid by the Owner on the due date.
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(a)
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The Owner must repay the Loans to the Facility Agent on each Repayment Date in accordance with the Repayment Schedule.
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(b)
|
The Facility Agent shall notify the Owner and the Lenders of any change in the amount or the timing of any Repayment Instalment as soon as practicable prior to or, as the case may be, after the Final Completion Date. In the event of any such notification, the Facility Agent shall replace the Repayment Schedule attached at Schedule 5 (Loan Repayment Schedule) with a new Repayment Schedule reflecting the correct Repayment Instalments and the correct Repayment Dates and promptly provide a copy thereof to the Owner and the Lenders.
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(c)
|
The Loans shall be repaid in full on the Final Maturity Date.
|
(d)
|
Any amounts repaid under this Clause 5 may not be re-borrowed.
|
(a)
|
If it becomes, or to the knowledge of any Lender is to become, unlawful or otherwise prohibited (whether temporarily or permanently) in any jurisdiction for a Lender to perform any of its obligations as contemplated by a Finance Document or to fund or maintain its share in one or more of the Loans, or to exercise any of its material rights under the Finance Documents, that Lender shall notify the Facility Agent and the Owner (any such event being a Lender Event).
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(b)
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After notification under paragraph (a) above (and subject always to satisfactory alternate arrangements being put into place in accordance with paragraph (d) below):
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(i)
|
the Owner must repay or prepay the share of that Lender in the relevant Loan or Loans on the date specified in paragraph (c) below; and
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(ii)
|
the Commitments of that Lender will be immediately cancelled.
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(c)
|
The date for prepayment of a Lender's share in a Loan will be:
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(i)
|
the last day of the current Term of that Loan; or
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(ii)
|
if earlier, the date specified by that Lender in the notice delivered to the Owner under paragraph (a) above (being no earlier than the last day of any applicable grace period permitted by Applicable Law).
|
(d)
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If, prior to the occurrence of a Lender Event, a Lender receives notice or becomes aware that a Lender Event will occur, that Lender and the Owner shall enter into discussions in good faith for a period of twenty (20) days (or such shorter period, if any, as may be available prior to the Lender Event taking effect) (the Lender Consultation Period) with a view to agreeing how the effects of the Lender Event can be avoided or mitigated so that alternative legal, valid and binding obligations, in form and substance satisfactory to that Lender and the Owner, are put in place. If that Lender and the Owner cannot agree and complete such arrangements prior to the end of the Lender Consultation Period, the Owner shall be obliged to immediately prepay the share of that Lender in the Loan on the date specified in paragraph (c) above.
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(a)
|
if there is a Total Loss (whether before or after the Delivery Date), on the earlier of:
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(i)
|
the date falling 90 days after the Date of Total Loss; and
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(ii)
|
the date of receipt by the Owner or the Security Trustee of the proceeds of insurance relating to such Total Loss;
|
(b)
|
if the Owner, or in the case of the Petrobras Brasil Charter the Bareboat Charterer or the Operator, fails to deliver the Vessel to the Charterer in accordance with the terms of a Drilling Charter (other than in circumstances where there is a Charter Termination Event), on the date of such failure;
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(c)
|
if either the Builder or the Owner is in breach of any of its material obligations under the Shipbuilding Contract, or either the Manager, the Bareboat Charterer, the Operator or the Owner is in breach of any of its material obligations under any other Related Contract, on the date falling 20 days after the date on which the Facility Agent gives written notice to the Owner that the Majority Lenders have so determined and such breach is not remedied or otherwise compensated for, in each case, to the satisfaction of the Majority Lenders within such period, or if the matter has been referred to arbitration within that 20-day period, upon the earlier of a settlement being reached in respect of such arbitration and five days after the receipt of the final arbitration award;
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(d)
|
if the Vessel has not been delivered by the Builder by the Petrobras Acceptance Longstop Date;
|
(e)
|
if a material part of the assets of the Charterer or, if applicable, the Charterer Parent are seized, expropriated, or compulsorily acquired, nationalised, confiscated or requisitioned by any Government Entity or by persons purporting to act on behalf of any Government Entity, subject, however, to the provisions of Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement);
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(f)
|
if a Charter Termination Event occurs, on the date of the occurrence of such Charter Termination Event, subject, however, to the provisions of Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement);
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(g)
|
if the Vessel is sold, on or before the date on which the sale is completed;
|
(h)
|
if the Shipbuilding Contract is terminated in circumstances where the Refund Guarantee is payable upon the earlier of:
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|
(i)
|
the date of receipt of the moneys under the Refund Guarantee; and
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|
(ii)
|
20 days after the date of termination or if the matter has been referred to arbitration within that 20-day period, upon the earlier of a settlement being reached in respect of such arbitration and five days after the receipt of the final arbitration award;
|
(i)
|
if
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|
the Shipbuilding Contract is terminated in circumstances other than those referred to in paragraph (c), on the date of its termination; or
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(j)
|
if
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|
Ocean Rig ceases to have direct or indirect control of the Owner at any time, the Bareboat Charterer during the Bareboat Charter Period, the Bareboat Charterer Parent during the Bareboat Charter Period or the Operator during the Operator Period, or to own directly or indirectly more than 50% of the voting capital or similar right of ownership of the Owner at any time, the Bareboat Charterer during the Bareboat Charter Period, the Bareboat Charterer Parent during the Bareboat Charter Period or the Operator during the Operator Period (and control for this purpose means the power to direct the management and the policies of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator as relevant, whether through the ownership of voting capital, by contract or otherwise), without the prior written consent of the Facility Agent (acting on the instructions of all the Lenders). The Facility Agent agrees that it will consult with the Owner in good faith (taking into account, inter alia, the security and credit position of the Finance Parties) should the Owner or Ocean Rig approach the Facility Agent with a proposal to effect an initial public offering of the Owner (but without an obligation on the part of any of the Finance Parties to consent to any such proposed initial public offering).
|
(a)
|
if the Sister Vessel is sold, on or before the date on which the sale is completed; or
|
(b)
|
if Ocean Rig ceases, for whatever reason, to own or retain the legal and beneficial interest in at least 50% of the shares of the Sister Owner.
|
(a)
|
Without prejudice to the provisions of Clause 6.1 (Mandatory prepayment - illegality), if the Facility Agent or the Owner become aware that any of the following (an Invalidity Event) has occurred or is likely to occur:
|
|
(i)
|
any Finance Document or Related Contract or any material provision of any such document ceasing to be valid in any way which, in the case of a Finance Document, is material and, in the case of a Related Contract, in any way which has a Material Adverse Effect or is alleged by the Owner to be ineffective in accordance with its terms for any reason;
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|
(ii)
|
any Security Document creating a Security Interest in favour of the Security Trustee (on trust for the Finance Parties) ceasing to provide a perfected first priority security interest in favour of the Security Trustee (on trust for the Finance Parties) (subject to any Permitted Liens having priority in law); or
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|
(iii)
|
the Owner repudiates a Finance Document,
|
(b)
|
If, prior to the occurrence of an Invalidity Event, the Facility Agent or the Owner receives an Invalidity Notice, the Facility Agent (acting on the instructions of the Majority Lenders) and the Owner shall enter into discussions in good faith for a period of 20 days or such shorter period, if any, as may be available prior to the Invalidity Event taking effect (the Consultation Period) with a view to agreeing how the effects of the Invalidity Event can be avoided so that alternative legal, valid and binding obligations, in form and substance satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) are provided in replacement of the affected Finance Document or Related Contract. In conducting such discussions and reaching a conclusion, the Lenders shall act in good faith but otherwise in their absolute discretion. If the Facility Agent (acting on the instructions of the Majority Lenders) and the Owner cannot agree on and complete such arrangements prior to the earlier of the end of the Consultation Period and the date upon which the relevant Invalidity Event becomes effective, the Owner shall be obliged to immediately prepay all outstanding Loans together with accrued interest and all other amounts accrued under the Finance Documents, and the Commitments of the Lenders shall be immediately cancelled.
|
(a)
|
The Owner may, at any time after the Final Completion Date and giving not less than 30 days' prior written notice to the Facility Agent, prepay a Loan in whole or in part on the last day of the relevant Term so long as it simultaneously (or if not then permitted on the earliest permitted date) prepays a pro rata amount of the principal outstanding under the Sister Loan Agreement.
|
(b)
|
A prepayment must be in a minimum amount of US$10,000,000 and, in excess of that, in multiples of US$1,000,000.
|
|
The relevant Commitments of each Lender will be automatically cancelled at the close of business on the last day of the relevant Availability Period.
|
(a)
|
The Owner may, by giving not less than five Business Days' prior notice to the Facility Agent, cancel the unutilised amount of the Total Commitments in whole or in part so long as it cancels a pro rata amount of commitments under the Sister Loan Agreement.
|
(b)
|
Partial cancellation of the Total Commitments must be in a minimum amount of US$10,000,000 and, in excess of that, in multiples of US$1,000,000.
|
(c)
|
Any cancellation in part will be applied against the relevant Commitment of each Lender pro rata and in respect of the Facility, across the Eksportfinans Loan, the KEXIM Loan and the Commercial Loan pro rata.
|
(a)
|
If the Owner is, or will be, required to pay to a Lender a Tax Payment or an Increased Cost, the Owner may, while the requirement continues, give notice to the Facility Agent requesting prepayment and cancellation in respect of that Lender.
|
(b)
|
After notification under paragraph (a) above:
|
|
(i)
|
the Owner must repay or prepay that Lender's share in each Loan made to it on the date specified in paragraph (c) below; and
|
|
(ii)
|
the Commitment of that Lender will be immediately cancelled.
|
(c)
|
The date for prepayment of a Lender's share in a Loan will be the last day of the current Term for the relevant Loan or any earlier date agreed between the Owner, the Facility Agent and that Lender.
|
(a)
|
Except where this Clause 6 expressly provides otherwise, any partial prepayment of a Loan will be applied against the Repayment Instalments in the inverse order of their maturity and shall be applied pro rata in respect of the amounts outstanding to the Eksportfinans Lenders, the KEXIM Lenders and the Commercial Lenders.
|
(b)
|
Upon any such partial prepayment, the Facility Agent shall, if applicable, replace the Repayment Schedule attached at Schedule 5 (Loan Repayment Schedule) with a new Repayment Schedule(s) reflecting the correct Repayment Instalments and promptly provide a copy thereof to the Owner.
|
(c)
|
No amount of a Loan prepaid (in full or in part) under this Agreement may subsequently be reborrowed.
|
(a)
|
Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) and the affected Loans and Commitments.
|
(b)
|
All prepayments under this Agreement must be made with accrued interest on the amount prepaid.
|
(c)
|
All prepayments (whether voluntary or mandatory) under this Agreement shall be subject to Break Costs (if any). Each Lender claiming Break Costs shall, as soon as reasonably practicable after demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Term in which they accrue. The Facility Agent agrees to provide a copy of such certificate to the Owner upon request by the Owner.
|
(d)
|
No prepayment or cancellation is allowed except in accordance with the express terms of this Agreement.
|
(a)
|
The rate of interest on each Commercial Loan for each Term during the Pre-Completion Period and the Post-Completion Period is the percentage rate per annum equal to the aggregate of:
|
|
(i)
|
the Applicable Margin at such time;
|
|
(ii)
|
LIBOR; and
|
|
(iii)
|
the Mandatory Cost, if any.
|
(b)
|
The rate of interest on each Eksportfinans Loan for each Term during the Pre-Completion Period and the Post-Completion Period shall be the aggregate of:
|
|
(i)
|
the applicable Pre-Completion Eksportfinans Interest Rate or, as the case may be, the applicable Post-Completion Eksportfinans Interest Rate; and
|
|
(ii)
|
the Mandatory Cost, if applicable.
|
(c)
|
The rate of interest on each KEXIM Loan for each Term during the Pre-Completion Period and the Post-Completion Period shall be the aggregate of:
|
|
(i)
|
LIBOR; and
|
|
(ii)
|
the Applicable Margin at such time.
|
(d)
|
Interest shall be calculated:
|
|
(i)
|
subject to paragraph (ii) below, by reference to the actual number of days elapsed and on the basis of a year of 360 days in respect of any Loan; and
|
|
(ii)
|
on a 30/360 day basis in respect of any Eksportfinans Loan.
|
(e)
|
Interest shall accrue from and including the first day of each Term to but excluding the last day of such Term.
|
(a)
|
If the Owner fails to pay any amount payable by it under the Finance Documents, it must immediately on demand by the Facility Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before, on and after judgment.
|
(b)
|
Interest on an overdue amount is payable at a rate determined by the Facility Agent to be the aggregate of 3% per annum above the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan. For this purpose, the Facility Agent may (acting reasonably) select successive Terms of any duration of up to six months.
|
(c)
|
Notwithstanding paragraph (b) above, if the overdue amount is a principal amount of a Loan and becomes due and payable before the last day of its current Term, then:
|
|
(i)
|
the first Term for that overdue amount will be the unexpired portion of that Term; and
|
|
(ii)
|
the rate of interest on the overdue amount for that first Term will be 3% per annum above the rate then payable on that Loan.
|
(d)
|
After the expiry of the first Term for that overdue amount, the rate on the overdue amount will be calculated in accordance with paragraph (b) above.
|
(e)
|
Interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each of its Terms but will remain immediately due and payable.
|
(a)
|
Each Loan has successive Terms.
|
(b)
|
The first term for a Loan will start on the Utilisation Date for that Loan and each subsequent Term for a Loan will start on the expiry of the preceding Term for that Loan.
|
(c)
|
Subject to the following provisions of this Clause 8 the duration of each Term shall be three (3) months during the Pre-Completion Period, provided always that the first Term for the Incidental Costs Loan shall expire on 31 October 2008 or if earlier, at the next Repayment Date.
|
(d)
|
Subject to the following provisions of this Clause 8 the duration of each Term shall be six (6) months during the Post-Completion Period, provided always that the first Term after the Final Completion Date shall expire on the first Repayment Date set out in the Repayment Schedule, being 31 May 2012.
|
9.
|
MARKET DISRUPTION
|
(a)
|
In this Clause 9, each of the following events is a market disruption event:
|
|
(i)
|
LIBOR is to be calculated by reference to the Reference Banks but no Reference Bank supplies a rate to the Facility Agent by 11.00 a.m. on the second London Business Day before the first day of the relevant Term; or
|
|
(ii)
|
the Facility Agent receives by close of business on the second London Business Day before the first day of the relevant Term notification from any Lender or Lenders whose shares in the relevant Loan exceed 30% of that Loan that the cost to them of obtaining matching deposits in the relevant interbank market is in excess of LIBOR for the relevant Term.
|
(b)
|
The Facility Agent must promptly notify the Owner and the Lenders of a market disruption event.
|
(c)
|
After notification under paragraph (b) above, the rate of interest on each Lender's share in the affected Loan for the relevant Term will be the aggregate of the relevant:
|
|
(i)
|
Applicable Margin at such time;
|
|
(ii)
|
rate notified to the Facility Agent by that Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Term, to be that which expresses as a percentage rate per annum the cost to that Lender of funding the Loan from whatever source it may reasonably select; and
|
|
(iii)
|
Mandatory Cost, if applicable, to that Lender's participation in the Loan.
|
(a)
|
If a market disruption event occurs and the Facility Agent or the Owner so require, the Owner and the Facility Agent must enter into negotiations for a period of not more than 20 days with a view to agreeing to an alternative basis for determining the rate of interest and/or funding for the affected Loan and any relevant future Loan.
|
(b)
|
Any alternative basis agreed between the Owner and the Facility Agent will be, with the prior written consent of all the Lenders, binding on all the Parties.
|
(c)
|
During the negotiation period referred to in paragraph (a) above and thereafter unless an agreement for such alternative basis is reached between the Parties, the provisions of Clause 9.2 shall apply.
|
10.
|
TAXES
|
10.1
|
Tax gross-up
|
(a)
|
The Owner must make all payments to be made by it under the Finance Documents without any Tax Deduction unless a Tax Deduction is required by Applicable Law.
|
(b)
|
Where the introduction of, or any change in, or any change in the interpretation, administration or application of, any Applicable Law or compliance with any law or regulation made after the date of this Agreement requires the Owner, or as the case may be, the Facility Agent, to make a Tax Deduction, as soon as the Owner or a Lender becomes aware of the same, it must promptly notify the Facility Agent. The Facility Agent must then promptly notify the affected Parties.
|
(c)
|
Following any notification referred to in paragraph (b) above, the amount of the payment due from the Owner will be increased or, as the case may be, the Owner shall make an additional payment, so that the amount (after making the Tax Deduction) received by the recipient is equal to the payment which would have been due if no Tax Deduction had been required.
|
(d)
|
If the Owner is required to make a Tax Deduction, it must make the Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by the Applicable Law.
|
(e)
|
Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction or, if later, promptly following receipt of the same, the Owner must deliver to the Facility Agent for the relevant Finance Party documents or other information (or certified copies thereof) evidencing satisfactorily to that Finance Party that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.
|
10.2
|
Tax indemnity
|
(a)
|
Except as provided below, the Owner must (within three Business Days of demand by the Facility Agent) indemnify a Finance Party by paying to such Finance Party an amount equal to any loss or liability which that Finance Party determines will be or has been suffered by that Finance Party for or on account of Tax in relation to a payment received or receivable (or any payment deemed to be received or receivable) under a Finance Document.
|
(b)
|
Paragraph (a) above does not apply:
|
|
(i)
|
to any Tax assessed on a Finance Party under the laws of the jurisdiction in which:
|
|
(A)
|
that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party has a Facility Office and is treated as resident for tax purposes; or
|
|
(B)
|
that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
|
(ii)
|
to the extent a loss or liability is compensated by an increased payment under Clause 10.1(c) (Tax gross-up).
|
(c)
|
A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Facility Agent of the event which will give, or has given, rise to the claim. The Facility Agent shall, in turn, notify the Owner.
|
(d)
|
A Finance Party shall, on receiving a payment from the Owner under this Clause 10.2, notify the Facility Agent.
|
(a)
|
All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly, subject to paragraph (b) below, if VAT is chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party must pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to such Party).
|
(b)
|
If VAT is chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party must also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient must promptly pay to the Relevant Party an amount equal to any credit or repayment from the relevant tax authority which it reasonably determines relates to the VAT chargeable on that supply.
|
(c)
|
Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party must also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that neither it nor any other member of any group of which it is a member for VAT purposes is entitled to credit or repayment from the relevant tax authority in respect of the VAT.
|
(a)
|
the introduction of, or any change in, or any change in the interpretation, administration or application of, any Applicable Law (including, for the avoidance of doubt, the implementation of matters set out in Basel II or any other revisions to the Basel Accord); or
|
(b)
|
compliance with any Applicable Law made after the date of this Agreement.
|
(a)
|
compensated for under another Clause or would have been but for an exception to that Clause;
|
(b)
|
attributable to the relevant Finance Party or any of its Affiliates wilfully failing to comply with any law or regulation;
|
(c)
|
attributable to a Tax Deduction required by Applicable Law to be made by the Owner; or
|
(d)
|
compensated for by the payment of Mandatory Cost.
|
(a)
|
If a Finance Party intends to make a claim for an Increased Cost it must notify the Facility Agent of the circumstances giving rise to and the amount of the claim, following which the Facility Agent will promptly notify the Owner.
|
(b)
|
Each Finance Party must, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Cost.
|
(a)
|
Each Finance Party must, in consultation with the Owner, use all reasonable endeavours to mitigate any circumstances which arise and which result or would result in any amount being payable under or pursuant to, or cancelled pursuant to, any of Clause 10 (Taxes) or Clause 11 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office and, in respect of any Increased Cost arising as a result of the implementation of the matters set out in Basel II or any other revisions to the Basel Accord, each Finance Party must apply its rights under Clause 11.1(a) (Increased Costs) on a non-discriminatory basis.
|
(b)
|
The Owner must indemnify that Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of any step taken by it under paragraph (a) above.
|
(c)
|
A Finance Party is not obliged to take any step under this Clause 11.4 if, in the opinion of that Finance Party (acting reasonably), to do so would be prejudicial to it.
|
(d)
|
Paragraph (a) does not in any way limit the obligations of the Owner under the Finance Documents.
|
(a)
|
maintain the Owner Accounts with the Account Bank (other than the Equity Account) until the Final Maturity Date; and
|
(b)
|
procure that the Bareboat Charterer shall maintain the Bareboat Charterer Accounts with the Account Bank during the Bareboat Charter Period; and
|
(c)
|
procure that the Operator shall maintain the Operator Account with the Brazilian Account Bank during the Operator Period,
|
(a)
|
The Owner shall pay, or procure that there is paid:
|
|
(i)
|
no later than one (1) Business Day after the date of service of each Request to the Facility Agent in the Pre-Completion Period, into the Proceeds Account, an amount equal to:
|
|
(A)
|
any Balancing Equity Contribution; and
|
|
(B)
|
the relevant Equity Contribution, in each case in respect of the Utilisation Date to which such Request relates; and
|
|
(ii)
|
the amount of each Loan into the Proceeds Account or if the Owner so requests in a Request in respect of an Instalment Loan, to an account of the Builder specified in the Request; and
|
(b)
|
During the Pre-Completion Period and on the Final Completion Date the Owner shall procure that there is forthwith credited to the Proceeds Account any other amount payable or paid to the Owner (including any Liquidated Damages Payments paid by the Builder under the terms of the Shipbuilding Contract). Provided that no Event of Default or Mandatory Prepayment Event has occurred and is continuing, the Owner shall be entitled to instruct the Account Bank to transfer (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer) on each Utilisation Date, after the proceeds of the relevant Loan have been credited, sufficient amounts from the Proceeds Account to:
|
|
(i)
|
any account specified by the Builder to be applied to make Instalment payments or, in the case that the relevant Loan is to be used to refinance the Instalment payment already paid to the Builder by the Owner, any account specified by the Owner, and
|
|
(ii)
|
the account nominated by the Facility Agent, to be applied to part of the Incidental Costs Loan as does not relate to Incidental Vessel Costs, and
|
|
(iii)
|
any account specified by the Owner to be applied towards such other items or costs as are included in the Vessel Cost,
|
(a)
|
first, to the Bareboat Charterer OPEX Account a transfer in accordance with Clause 12.5 (Transfers to the Bareboat Charterer OPEX Account) below; and
|
(b)
|
secondly, to the Proceeds Account an amount representing all payments of Bareboat Charterhire and any Requisition Compensation.
|
(a)
|
During the Post-Delivery Period, the Owner shall procure that there is forthwith credited to the Proceeds Account all Earnings and any Requisition Compensation payable to it, and the Owner shall procure that the following transfers will then be made in the following order:
|
|
(i)
|
first, to the Operating Expenses Account a transfer in accordance with Clause 12.6 (Transfers to the Operating Expenses Account);
|
|
(ii)
|
secondly, to the Debt Service Account a transfer in accordance with Clause 12.7 (Transfers to Debt Service Account);
|
|
(iii)
|
thirdly, to the extent required, a transfer to the Debt Service Reserve Account in accordance with Clause 12.12(b) (Payments to the Debt Service Reserve Account on or after the Utilisation Date of the Delivery Loan); and
|
|
(iv)
|
fourthly, to the extent required, a transfer to the CAPEX Account or during the Bareboat Charter Period to the Bareboat Charterer CAPEX Account in accordance with Clause 12.13 (Transfers to the CAPEX Account and the Bareboat Charterer CAPEX Account),
|
|
(A)
|
in respect of any rebate of Brazilian import tax incurred prior to the Amendment and Restatement Effective Date No.2 in respect of the Vessel; or
|
|
(B)
|
in respect of repayment of any Ocean Rig Loans made in respect of CAPEX Expenses (including, without limitation, costs associated with a number of system upgrades that were required in order for the Vessel to comply with the detailed specifications set out in the Petrobras Brasil Charter) and Operating Expenses in connection with mobilising the Vessel
|
|
(C)
|
in respect of any amounts paid by Ocean Rig following the date of the Amendment and Restatement Agreement Effective Date No.2 in respect of Operating Expenses or CAPEX Expenses in excess of the amounts allocated for Operating Expenses and CAPEX Expenses in the Annual Budget from that Bareboat Charterer Earnings Deposit Date to the next scheduled Bareboat Charterer Earnings Deposit Date,
|
|
(x)
|
to Ocean Rig; or
|
|
(y)
|
to the Parent by way of a dividend (to be dividended onwards to Ocean Rig);
|
(b)
|
Subject to Clause 12.4(c) below, once the Primary Transfers have been made, and subject to repayment of any Ocean Rig Repayment Amounts under and in accordance with Clause 12.4(a) above, the Owner shall instruct the Account Bank to transfer from the Proceeds Account (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Proceeds Account) to the Debt Service Reserve Account any surplus funds standing to the credit of the Proceeds Account (the Additional Reserve Transfers) until the date upon which the aggregate of the Additional Reserve Transfers and the Sister Additional Reserve Transfers is an amount equal to the Additional Reserve Amount.
|
(c)
|
To the extent that on 30 September 2014, the aggregate of the Additional Reserve Transfers and the Sister Additional Reserve Transfers is an amount less than the Additional Reserve Amount, then the Owner shall, on that date, deposit (or procure that an amount is deposited) in the Debt Service Reserve Account an amount such that the aggregate of the Additional Reserve Transfers and the Sister Additional Reserve Transfers is an amount equal to the Additional Reserve Amount.
|
(d)
|
Provided no Default or Mandatory Prepayment Event is at such time continuing, the Owner and the Finance Parties may, notwithstanding the provisions of this Clause 12 vary the order and application of the Primary Transfers by agreement in writing, in each case acting reasonably.
|
A x n
|
||
a =
|
||
N
|
a
|
=
|
the relevant amount of the Earnings and/or, as the case may be, Requisition Compensation to be transferred to the Debt Service Account out of the Proceeds Account;
|
|
A
|
=
|
the aggregate amount required to repay the next scheduled principal and interest instalment (provided that for the purposes of this Clause 12.7, scheduled interest in respect of any Hedged Portion shall be deemed to be payable at the applicable Fixed Rate);
|
|
N
|
=
|
the number of days in a Retention Period; and
|
|
n
|
=
|
the actual number of days elapsed from (and including) the immediately preceding Owner Earnings Deposit Date in the Retention Period or the first day of the Retention Period (where there is no preceding Owner Earnings Deposit Date in a Retention Period) up to (but excluding) the Owner Earnings Deposit Date,
|
(a)
|
On each Repayment Date:
|
|
(i)
|
to the extent that the Owner is required to make a periodic payment to a Swap Bank under a Swap Agreement, the Owner shall procure that (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Debt Service Account) an amount equal to the aggregate of any such periodic payments is transferred forthwith from the Debt Service Account to the relevant Swap Bank in accordance with the DPP; and
|
|
(ii)
|
to the extent that a Swap Bank is required to make a periodic payment to the Owner under a Swap Agreement then the Owner shall request that the Swap Bank pays such periodic payment directly into the Debt Service Account when due.
|
(b)
|
The Owner shall procure that there is transferred from the Debt Service Account (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Debt Service Account) to the Facility Agent after any payment to a Swap Bank as described in paragraph (a)(i) above:
|
|
(i)
|
on each Repayment Date, the amount of the Repayment Instalment then due in Dollars; and
|
|
(ii)
|
on the last day of each Term, the amount of interest then due in Dollars,
|
Payments to the Debt Service Reserve Account prior to the Utilisation Date of the Delivery Loan
|
(a)
|
The balance of the Debt Service Reserve Account shall at all times prior to the earlier to occur of the Vessel and Sister Vessel Drilling Charter Date and the Drilling Charter Cut-off Date be in an amount at least equal to the Equity Collateral. If the balance of the Debt Service Reserve Account falls at any time below an amount equal to the Equity Collateral, the Owner shall immediately pay, or procure that there is paid into the Debt Service Reserve Account such amount as shall restore the credit balance of the Debt Service Reserve Account to an amount equal to the Equity Collateral, provided that if the Vessel and Sister Vessel Drilling Charter Date has occurred and no Event of Default or Mandatory Prepayment Event has occurred and is continuing, notwithstanding Clause 12.11(b) below, the funds standing to the credit of the Debt Service Reserve Account relating to the Equity Collateral only, minus an amount equal to that required to be paid into the Debt Service Reserve Account pursuant to Clause 12.11(b) below, shall be released to the Owner or to its order.
|
(b)
|
The Owner shall pay, or procure that there is paid to the Debt Service Reserve Account on or prior to the earlier to occur of the Vessel and Sister Vessel Drilling Charter Date and the Drilling Charter Cut-off Date an amount equal to US$25,000,000.
|
(c)
|
At any time, and from time to time, prior to the Final Completion Date, the Owner shall be entitled, with the prior approval of the Facility Agent (acting on the instructions of the Majority Lenders), to withdraw all or part of the moneys standing to the credit of the Debt Service Reserve Account in order to meet any costs and expenses the Owner may incur which have not been contemplated in the Approved Budget.
|
(d)
|
Any balance standing to the credit of the Debt Service Reserve Account on the Utilisation Date of the Delivery Loan, shall be utilised towards the funding of the Required DSRA Balance.
|
Payments to the Debt Service Reserve Account on or after the Utilisation Date of the Delivery Loan
|
(a)
|
The Owner shall ensure, from the Utilisation Date of the Delivery Loan and at all times thereafter until the Final Maturity Date, that the amount standing to the credit of the Debt Service Reserve Account is equal to the aggregate of the Required DSRA Balance and the aggregate of the Additional Reserve Transfers at any time as required pursuant to Clauses 12.4(b) and (c).
|
(b)
|
In addition to the transfers referred to in Clauses 12.4(b) and (c), on each Owner Earnings Deposit Date, following the transfers referred to in Clauses 12.6 and 12.7 above, the Owner shall procure that there is transferred from the Proceeds Account (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Proceeds Account) to the Debt Service Reserve Account an amount to ensure that the balance of the Debt Service Reserve Account at such time is an amount at least equal to the Required DSRA Balance, provided that the Required DSRA Balance shall not include any amounts transferred to the Debt Service Reserve Account in accordance with Clauses 12.4(b) and (c).
|
(c)
|
The Security Trustee shall be entitled to withdraw sums of money standing to the credit of the Debt Service Reserve Account in accordance with the terms of the Owner Accounts Charge Agreement.
|
12.14
|
Investments
|
13.3
|
Distribution
|
(a)
|
Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided below, be made available by the Facility Agent to that Party by payment (as soon as practicable after receipt) to its account with such office or, in the case of KEXIM, in New York as it may notify to the Facility Agent for this purpose by not less than five Business Days' prior notice.
|
(b)
|
The Facility Agent may apply any amount received by it from the Owner in or towards payment (as soon as practicable after receipt) of any amount due from the Owner under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.
|
(c)
|
Where a sum is paid to the Facility Agent under this Agreement for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Facility Agent may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum has not been received by the Facility Agent, that Party must forthwith on demand by the Facility Agent refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Facility Agent at a rate reasonably calculated by the Facility Agent to reflect its cost of funds.
|
(a)
|
Unless a Finance Document specifies that payments under it are to be made in a different manner, the currency of each amount payable under the Finance Documents is determined under this Subclause.
|
(b)
|
Amounts payable in respect of Taxes, fees, costs and expenses are payable in the currency in which they are incurred.
|
(c)
|
Each other amount payable under the Finance Documents is payable in Dollars.
|
(a)
|
If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same month (if there is one) or the preceding Business Day (if there is not).
|
(b)
|
During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date.
|
(a)
|
Subject always to the provisions of the DPP and except to the extent otherwise provided in any
|
|
(i)
|
first, in or towards payment or satisfaction pro rata of all costs, charges, sales taxes, expenses and liabilities incurred and due and payments made by the Finance Parties, the Account Bank, the Brazilian Account Bank or any receiver in enforcing rights under the Finance Documents and/or recovering possession of the Security Assets and all remuneration payable to the Finance Parties for which the relevant Finance Party is entitled to be reimbursed under the Finance Documents or any receiver under or pursuant to the Security Documents (including, without limitation, legal expenses and reinstatement costs) provided that, in respect of any such payment or payments payable to the Swap Bank, the amount paid shall not exceed the Swap Limit;
|
|
(ii)
|
secondly, in or towards payment pro rata of any due and unpaid fees, costs and expenses of the Finance Parties, the Account Bank or the Brazilian Account Bank under the Finance Documents to the extent not recovered under subparagraph (i) above provided that, in respect of any such payment or payments payable to the Swap Bank the amount paid, when aggregated with any amounts recovered by the Swap Banks under subparagraph (i) above, shall not exceed the Swap Limit;
|
|
(iii)
|
thirdly, in or towards payment pro rata of any interest on overdue amounts payable to the Finance Parties provided that, in respect of any such payment or payments payable to the Swap Banks the amount paid, when aggregated with any amounts recovered by the Swap Banks under subparagraphs (i) and (ii) above, shall not exceed the Swap Limit;
|
|
(iv)
|
fourthly, in or towards payment pro rata of any accrued but due and unpaid interest (other than interest on overdue amounts referred to in subclause (iii)) payable to the Finance Parties provided that, in respect of any such payment or payments payable to the Swap Banks the amount paid, when aggregated with any amount recovered by the Swap Banks under subparagraphs (i), (ii) and (iii) above, shall not exceed the Swap Limit;
|
|
(v)
|
fifthly, in or towards payment pro rata of:
|
|
(A)
|
any due but unpaid Break Costs of the Finance Parties; or
|
|
(B)
|
any due but unpaid principal payable to the Finance Parties,
|
|
(vi)
|
sixthly, in or towards payment pro rata to the Finance Parties of any other amounts which are due but unpaid by the Owner to any of the Finance Parties under the Finance Documents in such order as the Finance Parties shall determine provided that, in respect of any such payment or payments payable to the Swap Banks the amount paid, when aggregated with any amount recovered by the Swap Banks under subparagraphs (i), (ii), (iii), (iv) and (v) above, shall not exceed the Swap Limit;
|
|
(vii)
|
seventhly, any payments due but unpaid to the Swap Banks under a Swap Agreement to the extent not already recovered under paragraphs (i), (ii), (iii), (iv), (v) and (vi) above; and
|
|
(viii)
|
after all amounts payable or which may become payable to the Finance Parties under the Finance Documents have been paid in full, in or towards payment of the surplus, if any, to the Owner or other persons entitled thereto free of any charge or other restriction.
|
(b)
|
The Facility Agent must, if so directed by all the Lenders, vary the order set at subparagraphs (a)(ii) to (a)(vi) above, provided always that to the extent that the provisions of this paragraph shall conflict with the DPP, the provisions of the DPP shall prevail. Any amendment or variation to any other provision of this Agreement other than the order of payments in paragraph (a) above shall require the prior written consent of the Owner.
|
(c)
|
This Clause 13.7 will override any appropriation made by the Owner.
|
(a)
|
It is a corporation, duly organised and validly existing under the laws of the Marshall Islands.
|
(b)
|
It has the power to own its assets and carry on its business as it is being conducted.
|
(c)
|
It is indirectly wholly owned by Ocean Rig (acting through the Parent and the Parent Shareholder).
|
(d)
|
Subject to the Security Documents, the Parent is the legal and beneficial owner of all of the share capital of the Owner, the Parent Shareholder is the legal and beneficial owner of all of the share capital of the Parent and Ocean Rig is the legal and beneficial owner of all of the share capital of the Parent Shareholder.
|
(e)
|
No person has any right to call for the issue or transfer of any share capital or loan stock in the Owner other than in accordance with the Security Documents.
|
(f)
|
All of the shares in the capital of the Owner are fully paid up.
|
(a)
|
Subject to any general principles of law limiting its obligations, each Transaction Document to which it is a party is its legally binding, valid and enforceable obligation.
|
(b)
|
This Agreement and each Transaction Document to which it is a party is in the proper form for its enforcement in the jurisdiction of its incorporation.
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
its constitutional documents; or
|
(c)
|
any agreement or instrument which is binding upon it or any of its assets.
|
(a)
|
No Default is outstanding under, or will result from the entry into, or the performance by it of any transaction contemplated by, any Transaction Document.
|
(b)
|
There is no outstanding material breach of any term of any Transaction Document to which it is a party and no person has disputed, repudiated or disclaimed liability under any Transaction Document to which it is a party or evidenced an intention to do so.
|
(c)
|
No other event is outstanding which constitutes a default under any document which is binding on it or any of its assets to an extent or in a manner which is reasonably likely to have a Material Adverse Effect.
|
(a)
|
Under Marshall Islands law and the laws of any other jurisdiction where the Owner carries on business, except for the registration of the Mortgage at the Marshall Islands Ships Registry, all authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, the Finance Documents have been obtained or effected (as appropriate) and are in full force and effect or will be in full force and effect at the time such authorisations are required in such jurisdiction.
|
(b)
|
It is not aware of:
|
|
(i)
|
any reason why any Transaction Authorisation required by it will not be obtained or effected by the time it is required;
|
|
(ii)
|
any steps to revoke or cancel any Transaction Authorisation required by it; or
|
|
(iii)
|
any reason why any Transaction Authorisation required by it will not be renewed when it expires without the imposition of any new restriction or condition.
|
(a)
|
have been prepared in accordance with IFRS or US GAAP, as the case may be, consistently applied; and
|
(b)
|
give a true and fair view of its financial condition as at the date to which they were drawn up, except, in each case, as disclosed to the contrary in those financial statements.
|
(a)
|
It is not required under the law of its jurisdiction of incorporation to make any Tax Deduction for or on account of Tax from any payment it may make under a Finance Document.
|
(b)
|
No claims are being, nor, as far as it is aware, might reasonably be expected to be, asserted against it with respect to Taxes.
|
(a)
|
The Owner and, to the best of the Owner's knowledge and belief (having made due enquiry), its Environmental Affiliates are in compliance with all material provisions of all applicable Environmental Laws in relation to the Vessel and its operations;
|
(b)
|
the Owner and, to the best of the Owner's knowledge and belief (having made due enquiry), its Environmental Affiliates have obtained or will, by the Delivery Date, have obtained all requisite Environmental Approvals in relation to the Vessel and its operations are and will, on the Delivery Date and at all times thereafter be in compliance, with such Environmental Approvals;
|
(c)
|
neither the Owner nor, to the best of the Owner's knowledge and belief (having made due enquiry), any of its Environmental Affiliates has received notice of nor have issued (or threatened to issue) any Environmental Claim in excess of US$2,500,000 or which, when aggregated with any other Environmental Claim in relation to the Vessel or its operations in any 12-month period, exceeds US$10,000,000 in relation to the Vessel which alleges that the Owner is not in compliance with applicable Environmental Laws in relation to the Vessel or Environmental Approvals in relation to the Vessel;
|
(d)
|
there is no Environmental Claim in relation to the Vessel in excess of US$2,500,000 or which, when aggregated with any other Environmental Claim in relation to the Vessel and its operations, exceeds US$10,000,000 pending or, to the best of its knowledge and belief, threatened in writing;
|
(e)
|
there has been no Release of Hazardous Materials by or in respect of the Vessel which could lead to an Environmental Claim in relation to the Vessel or its operations in excess of US$2,500,000 or which, when aggregated with any other Environmental Claim in relation to the Vessel or its operations, exceeds US$10,000,000; and
|
(f)
|
to the best of the Owner's knowledge and belief (having made due inquiry), the Charterer has obtained and is in compliance with all Environmental Approvals required of a Charterer in connection with use of the Vessel, and the Charterer is in compliance in all material respects with all Environmental Laws to the extent relating to the offshore lease blocks in which the Vessel will operate pursuant to a Drilling Charter.
|
(a)
|
Subject to Permitted Liens and any rights of the Charterer under a Drilling Charter, the Owner is the sole legal and beneficial owner entitled to the Security Assets over which it has or will create any Security Interest pursuant to the Security Documents to which it is or will be a party and there is no agreement or arrangement, other than in the DPP, under which it is obliged to share any proceeds of or derived from such Security Assets with any third party.
|
(b)
|
Each Security Document to which it is or will be a party creates or will create first priority security interests of the type described.
|
14.20
|
No amendments to Related Contracts
|
(a)
|
Each of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent and the Operator is not unable or deemed unable, does not admit and has not admitted its inability to pay its debts and has not suspended making payments on any of its debts.
|
(b)
|
Each of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent and the Operator by reason of actual or anticipated financial difficulties has not commenced, and does not intend to commence, negotiations with one or more of its creditors with a view to rescheduling any of its Financial Indebtedness.
|
(c)
|
The value of the assets of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator is not less than its liabilities (taking into account contingent and prospective liabilities).
|
(d)
|
No moratorium has been declared in respect of any indebtedness of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator during the period of six months commencing on the date this representation is made or deemed to be repeated pursuant to Clause 14.30(a) (Times for making representations).
|
(a)
|
The entry into by it of each Transaction Document to which it is a party constitutes, and the exercise by it of its rights and performance of its obligations under each such Transaction Document will constitute, private and commercial acts performed for private and commercial purposes.
|
(b)
|
It will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in its jurisdiction of incorporation in relation to any Transaction Document.
|
(a)
|
It is not necessary under the laws of its jurisdiction of incorporation:
|
|
(i)
|
in order to enable a Finance Party to enforce its rights under any Finance Document; or
|
|
(ii)
|
by reason of the entry into of any Finance Document or the performance by it of its obligations under any Finance Document,that any Finance Party should be licensed, qualified or otherwise entitled to carry on business in its jurisdiction of incorporation.
|
(b)
|
No Finance Party will be deemed to be resident, domiciled or carrying on business in its jurisdiction of incorporation by reason only of the entry into, performance and/or enforcement of any Finance Document.
|
(a)
|
Its:
|
|
(i)
|
irrevocable submission under this Agreement to the jurisdiction of the courts of England;
|
|
(ii)
|
agreement that this Agreement is governed by English law; and
|
|
(iii)
|
agreement not to claim any immunity to which it or its assets may be entitled, are legal, valid and binding under the laws of its jurisdiction of incorporation.
|
(b)
|
Any judgment obtained in England will be recognised and be enforceable by the courts of its jurisdiction of incorporation, subject to any statutory or other conditions of such jurisdiction.
|
(a)
|
Except as expressly contemplated by the Transaction Documents, neither the Owner, the Bareboat Charterer Parent, nor the Bareboat Charterer has traded or carried on any business since the date of its incorporation.
|
(b)
|
It does not have any Subsidiaries other than the Bareboat Charterer Parent, the Bareboat Charterer Parent does not have any Subsidiaries other than the Bareboat Charterer, and the Bareboat Charterer does not have any Subsidiaries.
|
(c)
|
Neither the Owner nor the Bareboat Charterer is a party to any agreement other than the Transaction Documents, other than agreements of a non-material and administrative only nature and which will not prejudice the Finance Parties' interests in the Transaction Documents and the Vessel.
|
(d)
|
The Operator is not party to any other documents which would prejudice the Finance Parties' rights and interests in and under the Transaction Documents and the Vessel.
|
14.28
|
Shipbuilding Contracts
|
(a)
|
Neither the Owner, the Bareboat Charterer, the Bareboat Charterer Parent, the Operator, the Parent, the Parent Shareholder nor Ocean Rig or any of their respective parents, subsidiaries or affiliates is a division, bureau, office, agency, department, committee or political subdivision of the jurisdiction of its incorporation or any other sovereign jurisdiction.
|
(b)
|
Neither the Owner, the Bareboat Charterer, the Bareboat Charterer Parent, the Operator, the Parent, the Parent Shareholder nor Ocean Rig is engaged in:
|
|
(i)
|
the retailing, wholesaling, trading or importing of goods or services for or with residents of the jurisdiction of its incorporation;
|
|
(ii)
|
any extractive industry in the jurisdiction of its incorporation;
|
|
(iii)
|
any regulated professional service activity in the jurisdiction of its incorporation;
|
|
(iv)
|
the export of any commodity or goods manufactured, processed, mined or made in the jurisdiction of its incorporation; or
|
|
(v)
|
the ownership of real property in its jurisdiction of incorporation.
|
(c)
|
Neither the Owner, the Bareboat Charterer, the Bareboat Charterer Parent, the Parent, the Parent Shareholder nor Ocean Rig is doing business in the jurisdiction of its incorporation, except that each of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent, the Parent, the Parent Shareholder or Ocean Rig may have its registered office in the jurisdiction of its incorporation and maintain its agent there.
|
(a)
|
The representations and warranties set out in this Clause 14 are made by the Owner on the date of this Agreement and shall be deemed to be repeated on each Utilisation Date and each date on and from the Amendment and Restatement Effective Date No.2.
|
(b)
|
When a representation and warranty is repeated, it is applied to the circumstances existing at the time of repetition.
|
(c)
|
The representations and warranties set out in this Clause 14 relating to the Bareboat Charterer , the Bareboat Charterer Parent and the Operator apply only in relation to those entities during the Bareboat Charter Period in respect of the Bareboat Charterer and the Bareboat Charterer Parent and the Operator Period in respect of the Operator.
|
14.31
|
Legal qualifications
|
(a)
|
The Owner must supply to the Facility Agent, in electronic form by email attachment or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), its audited financial statements for each of its financial years ending after the date of this Agreement.
|
(b)
|
The Owner shall procure that Ocean Rig shall supply to the Facility Agent its audited consolidated financial statements for each of its financial years ending after the date of this Agreement.
|
(c)
|
The Owner must supply to the Facility Agent, in electronic form by email attachment or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), its interim unaudited financial statements for each quarter of each financial year ending after the date of this Agreement.
|
(d)
|
The Owner shall procure that each of Ocean Rig, the Bareboat Charterer during the Bareboat Charter Period, the Bareboat Charterer Parent during the Bareboat Charter Period and the Operator during the Operator Period shall supply to the Facility Agent its interim unaudited financial statements for each quarter of each financial year ending after the date of this Agreement.
|
(e)
|
All audited financial statements of the Owner and consolidated financial statements of Ocean Rig must be supplied as soon as they are available and in any event within 150 days of the end of the relevant financial period and all unaudited financial statements for each quarter (in respect of the entities noted at (d) above) must be supplied as soon as they are available and in any event within 60 days of the end of each relevant financial period.
|
(a)
|
The Owner must ensure that each set of financial statements supplied under Clause 15.1 of this Agreement fairly represents the relevant parties financial condition as at the date to which those financial statements were drawn up.
|
(b)
|
The Owner must notify the Facility Agent of any change to the basis on which the audited financial statements are prepared.
|
(c)
|
If requested by the Facility Agent, the Owner must supply or procure that the following are supplied to the Facility Agent:
|
|
(i)
|
a full description of any change notified under paragraph (b) above; and
|
|
(ii)
|
sufficient information to enable the Facility Agent to make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and its most recent audited financial statements delivered to the Facility Agent under this Agreement.
|
(d)
|
If requested by the Facility Agent, the Owner must enter into discussions for a period of not more than 30 days with a view to agreeing to any amendments required to be made to this Agreement to place the Facility Agent in the same position as it would have been in if the change had not happened.
|
(e)
|
If no agreement is reached under paragraph (d) above on the required amendments to this Agreement, the Owner shall ensure that its auditors or, as the case may be, the Owner specifies those amendments; the certificate of the auditors will be, in the absence of manifest error, binding on all the Parties.
|
(a)
|
The Owner must supply to the Facility Agent, in electronic form by email attachment or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), a draft Annual Budget for each financial year within 14 days of its approval by the board of directors of the Owner, the Bareboat Charterer and the Operator and at least one month prior to the start of the relevant financial year, such budget to be considered and, if agreed by the Majority Lenders, approved in writing by the Facility Agent (acting reasonably) within 21 days of receipt following which the draft Annual Budget shall become the Annual Budget for the purposes of this Agreement. For this purpose if any Lender fails to respond to a request to agree any such draft within 21 days it shall be deemed to have approved it.
|
(b)
|
In the event any draft Annual Budget is not approved by the Facility Agent, the Facility Agent and the Owner, the Bareboat Charterer and the Operator shall consult and agree a revised Annual Budget. If a revised Annual Budget is not agreed within 30 days, the Facility Agent (acting on the instructions of the Majority Lenders) and the Owner, the Bareboat Charterer and the Operator shall agree to appoint a suitable expert to resolve any disputes they may have in respect of the Annual Budget. If the Facility Agent and Owner, the Bareboat Charterer and the Operator cannot agree on an expert, the Facility Agent will apply to the London Maritime Arbitrators Association and the President of the London Marine Arbitrators Association shall appoint an expert on their behalf. In each case, the written determination of such expert in respect of any dispute, addressed to the Facility Agent and the Owner, shall (except in the case of manifest error) be final and binding.
|
(c)
|
Until a revised Annual Budget has been agreed between the Owner, the Bareboat Charterer and the Operator and the Facility Agent in accordance with this Clause 15.3, in relation to the Owner the amount of any Earnings to be transferred from the Proceeds Account to the Operating Expenses Account or, as the case may be, the CAPEX Account, and in relation to the Bareboat Charterer during the Bareboat Charter Period the amount of any Bareboat Charterer Earnings to be transferred from the Bareboat Charterer Proceeds Account to the Bareboat Charterer OPEX Account, or as the case may be, the Bareboat Charterer CAPEX Account, shall continue on the basis of the current (or, as the case may be, immediately previous) Annual Budget.
|
(d)
|
The Owner must promptly supply to the Technical Adviser, in electronic form by email attachment or hard copy, quarterly (or if the Facility Agent decides, in consultation with the Owner, that a monthly report is needed, monthly) technical reports (in the Pre-Completion Period) in form and substance satisfactory to the Technical Adviser together with all such other information and documents which the Technical Adviser reasonably requires to perform its Workscope and its obligations under the Technical Proposal.
|
(e)
|
The Owner must procure that the Builder will give the Technical Adviser access to perform periodic visits to the premises of the Builder and the Builder's subcontractors in order to monitor the construction of the Vessel and the materials and components to be used in the construction of the Vessel and that the Builder, the Manager and the Classification Society will provide the Technical
|
(f)
|
The Owner shall on a quarterly basis provide to the Facility Agent a report in form and substance satisfactory to the Facility Agent (acting on the instructions of the Lenders) in relation to the earnings efficiency of the Vessel.
|
(a)
|
copies of all documents despatched by it, the Bareboat Charterer (during the Bareboat Charter Period) or the Operator (during the Operator Period), to its or their creditors (other than trade creditors) generally or any class of them at the same time as they are despatched;
|
(b)
|
copies of all reports provided to the Owner, the Bareboat Charterer (during the Bareboat Charter Period) or the Operator (during the Operator Period), by the Manager pursuant to the Management Agreement, in each case, within five (5) Business Days of receipt of such report by the Owner and if, in the opinion of the Facility Agent (acting reasonably), any additional technical report is necessary, the Owner will procure such report;
|
(c)
|
as soon as reasonably practicable on becoming aware of them, details of any litigation, arbitration or administrative proceedings which are current, pending or, to the best of its knowledge and belief, threatened against it the Bareboat Charterer (during the Bareboat Charter Period) or the Operator (during the Operator Period), and which, in each case, would have a Material Adverse Effect (in the opinion of the Facility Agent acting on the instructions of the Majority Lenders);
|
(d)
|
as soon as reasonably practicable on request, such further information, in electronic form by email attachments or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), regarding the financial condition and operations of the Owner, the Bareboat Charterer (during the Bareboat Charter Period) or the Operator (during the Operator Period) or regarding any matter relevant to, or to any provision of, a Finance Document as the Facility Agent may reasonably request;
|
(e)
|
as soon as reasonably practicable on the Owner the Bareboat Charterer or the Operator, becoming aware of them, details of any event or circumstance which is a Force Majeure Event;
|
(f)
|
promptly on the Owner, the Bareboat Charterer, or the Operator becoming aware of them, details of any event which has a Material Adverse Effect;
|
(g)
|
as soon as they are available, copies of any notice of default, termination, material dispute or claim (including notices provided by the Charterer under the terms of a Drilling Charter) made against
|
(h)
|
as soon as they are available, copies of any notice of default, termination or material claim made against it, or the Bareboat Charterer (during the Bareboat Charter Period), under the Management Agreement together with details of any action it or the Bareboat Charterer (during the Bareboat Charter Period), proposes to take in relation to the same and, upon becoming aware of the same, notification of any strikes or industrial action taken or proposed to be taken by the Manager or the Operator (during the Operator Period) or their employees, subcontractors or personnel from time to time which has or may reasonably be expected to have a Material Adverse Effect;
|
(i)
|
promptly on becoming aware of them, details of any damage to or destruction of the Vessel or any breakdown of any part of the Vessel, where the cost of repair or reinstatement is likely to exceed US$10,000,000 or where the cumulative cost of repair or reinstatement of damage to or destruction of the Vessel during the previous six months is likely to exceed US$10,000,000;
|
(j)
|
promptly on the Owner, the Bareboat Charterer (during the Bareboat Charter Period) or the Operator (during the Operator Period), becoming aware of them, details of any proposal for an amendment or waiver of a Related Contract other than amendments or waivers of an administrative or non-material nature; and
|
(k)
|
upon request by the Facility Agent, copies of all Transaction Authorisations (if any) obtained by it, the Bareboat Charterer (during the Bareboat Charter Period) or the Operator (during the Operator Period).
|
(a)
|
The Owner must promptly supply to the Facility Agent, in electronic form by email attachments or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders) any reports received in relation to the construction of the Vessel provided by the Builder pursuant to Article IV paragraph 7 of the Shipbuilding Contract.
|
(b)
|
The Owner must promptly, upon the earlier of (i) becoming aware of the same and (ii) the time when a prudent owner ought reasonably to have become aware of the same, notify the Facility Agent of:
|
|
(i)
|
any breach (or attempted breach) of safety or security at the premises of the Builder which has a Material Adverse Effect;
|
|
(ii)
|
any material claim it may have under any indemnity or provision for any Liquidated Damages Payments under the Shipbuilding Contract;
|
|
(iii)
|
any reduction in hire payable under a Drilling Charter on account of a delay in delivery of the Vessel to the Charterer; and
|
|
(iv)
|
any change or further change to the Scheduled Delivery Date.
|
15.7
|
Notification of Default
|
(a)
|
All financial and other information provided by the Owner under or in connection with any Finance Document at the time when given will be true and not misleading in any material respect and will not omit any material fact.
|
(b)
|
All financial and other information provided by third parties on behalf of the Owner under or in connection with any Finance Document at the time when given will, to the best of the Owner's knowledge and belief, be true and not misleading in any material respect and will not omit any material fact.
|
(a)
|
At least 15 Business Days prior to each Repayment Date, the Owner shall deliver a duly completed Calculation Certificate to the Facility Agent signed by two of its authorised signatories on its behalf:
|
|
(i)
|
setting out the Debt Service Cover Ratio for the most recent Calculation Period; and
|
|
(ii)
|
certifying no Default, Mandatory Prepayment Event or Potential Mandatory Prepayment Event is outstanding or, if a Default, Mandatory Prepayment Event or Potential Mandatory Prepayment Event is outstanding, specifying the Default, Mandatory Prepayment Event or Potential Mandatory Prepayment Event outstanding and the steps, if any, being taken to remedy it.
|
(b)
|
Within seven Business Days of receiving a Calculation Certificate, the Facility Agent must notify the Owner whether it agrees with the Debt Service Cover Ratio calculation set out in that Calculation Certificate, otherwise the Facility Agent will be deemed to have accepted such Debt Service Cover Ratio calculation.
|
(c)
|
If the Facility Agent does not agree with the Debt Service Cover Ratio calculation set out in a Calculation Certificate, the Facility Agent and the Owner shall consult, in good faith, to agree the Debt Service Cover Ratio calculation as soon as possible. If the Debt Service Cover Ratio is not agreed within ten Business Days of notification by the Facility Agent under paragraph (b) above, the matter will be referred to the Owner's auditor whose written determination, addressed to the Facility Agent and the Owner, shall (except in the case of manifest error) be final and binding.
|
15.12
|
Know your customer requirements
|
(a)
|
The Owner must promptly on the request of any Finance Party supply to that Finance Party any documentation or other evidence which is reasonably requested by that Finance Party (whether for itself, on behalf of any Finance Party or any prospective new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of all applicable know your customer requirements.
|
(b)
|
Each Lender must promptly on the request of the Facility Agent supply to the Facility Agent any documentation or other evidence which is reasonably required by the Facility Agent to carry out and be satisfied with the results of all know your customer requirements.
|
(a)
|
obtain, maintain and comply with the terms; and
|
(b)
|
supply certified copies to the Facility Agent, of any authorisation required under any Applicable Law to enable it, the Bareboat Charterer (during the Bareboat Charter Period) and the Operator (during the Operator Period) to perform its or their obligations under, or for the validity, enforceability or admissibility in evidence of, any Finance Document.
|
(a)
|
The Owner must not and shall procure that the Bareboat Charterer and the Operator shall not (other than insofar as the same may be created or effected under the Finance Documents), either in a single transaction or in a series of transactions and whether related or not:
|
|
(i)
|
sell, transfer or otherwise dispose of all or a substantial part of its assets;
|
|
(ii)
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
|
(iii)
|
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
|
(iv)
|
enter into any other preferential arrangement having a similar effect, in circumstances where the transaction might have a Material Adverse Effect.
|
(b)
|
Paragraph (a) does not apply to any disposal:
|
|
(i)
|
made in the ordinary course of trading on arm's length terms;
|
|
(ii)
|
of obsolete assets; or
|
|
(iii)
|
of assets (other than the Vessel) in exchange for other assets comparable or superior as to type, value and quality.
|
(a)
|
must not engage in any business other than the direct ownership, operation and chartering of the Vessel or any business incidental thereto;
|
(b)
|
must not cease to carry on its business;
|
(c)
|
must not own or acquire any asset other than the Vessel or any asset incidental to the ownership, operation and chartering of the Vessel; or
|
(d)
|
must not incur any Financial Indebtedness other than:
|
|
(i)
|
Financial Indebtedness incurred or permitted under the Finance Documents;
|
|
(ii)
|
any Financial Indebtedness by way of borrowing from Ocean Rig for the purpose only of posting any cash collateral which the Owner may from time to time be required to post under any of the Swap Agreements provided that any such Financial Indebtedness is fully subordinated to the rights and interests of the Finance Parties under the Finance Documents;
|
|
(iii)
|
Group Loans, provided that any such Group Loans are fully subordinated (including with respect to any interest incurred on such Group Loans) to the rights and interests of the Finance Parties under the Finance Documents (except to the extent of repayments in respect of any Ocean Rig Repayment Amounts under and in accordance with Clause 12.4(a) (Proceeds Account - Post Delivery Period) above);
|
|
(iv)
|
any Financial Indebtedness otherwise approved by the Facility Agent (acting on the instructions of the Majority Lenders); and
|
(e)
|
shall procure that during the Bareboat Charter Period the Bareboat Charterer does not:
|
|
(i)
|
engage in any business other than the operation and charterering of the Vessel or any business incidental thereto;
|
|
(ii)
|
cease to carry on its business;
|
|
(iii)
|
own or acquire any assets other than any asset incidental to the operation and chartering of the Vessel;
|
|
(iv)
|
incur any Financial Indebtedness other than Financial Indebtedness incurred or permitted under the Finance Documents; and
|
(f)
|
shall procure that during the Bareboat Charter Period the Bareboat Charterer Parent does not:
|
|
(i)
|
engage in any business other than owing the Bareboat Charterer;
|
|
(ii)
|
cease to carry on its business;
|
|
(iii)
|
own or acquire any assets other than shares in the Bareboat Charterer;
|
|
(iv)
|
incur any Financial Indebtedness other than Financial Indebtedness incurred or permitted under the Finance Documents.
|
(a)
|
the relevant Primary Transfers in respect of that Owner Earnings Deposit Date have been made in accordance with Clause 12.4(a) above; and (subject to any repayment of any Ocean Rig Repayment Amounts under and in accordance with Clause 12.4(a) above)
|
(b)
|
the balance standing to the credit of the Debt Service Reserve Account is in an amount equal to at least the aggregate of (A) the Required DSRA Balance at that time and (B) Additional Reserve Transfers in an amount which when aggregated with the Sister Additional Reserve Transfers is in an amount equal to the Additional Reserve Amount; and
|
(c)
|
no Default has occurred and is continuing, or will result from the making of any such Distribution.
|
(a)
|
The Owner must maintain its registered office in the Marshall Islands and keep its corporate documents at either its registered office or at the offices of its officers and will not voluntarily establish, or do anything as a result of which it would be deemed to have voluntarily established, a place of business in any country other than the Marshall Islands.
|
(b)
|
The Owner shall procure that during the Bareboat Charter Period the Bareboat Charterer and during the Bareboat Charter Period the Bareboat Charterer Parent shall maintain their registered offices in the Netherlands and keep their corporate documents at either their respective registered offices or at the offices of their respective officers and will not voluntarily establish, or do anything as a result of which it would be deemed to have voluntarily established, a place of business other than in the Netherlands.
|
(c)
|
The Owner shall procure that during the Operator Period the Operator shall maintain its registered office in the Federative Republic of Brazil and keep its corporate documents at either its registered office or at the offices of its officers and will not voluntarily establish, or do anything as a result of which it would be deemed to have voluntarily established, a place of business other than in the Federative Republic of Brazil.
|
(a)
|
The Owner shall not, and shall procure that the Operator, the Bareboat Charterer (during the Bareboat Charter Period) and the Bareboat Charterer Parent (during the Bareboat Charter Period) shall not, enter into any amalgamation, demerger, merger or reconstruction that might have a Material Adverse Effect.
|
(b)
|
Save in the ordinary course of business, each of the Owner, the Operator, the Bareboat Charterer and the Bareboat Charterer Parent must not incur or allow to be outstanding any guarantee (including an indemnity or other assurance against loss) (a Relevant Guarantee) by it in respect of any person and any Relevant Guarantee which would otherwise be permitted under this paragraph (b) will not be permitted if the Owner's, the Operator's, the Bareboat Charterer's or the Bareboat Charterer Parent's obligations under the Relevant Guarantee are secured by any of the Security Assets (save to the extent such security constitutes a Permitted Lien).
|
(c)
|
The Owner must not, and shall procure that the Operator, the Bareboat Charterer (during the Bareboat Charter Period) and the Bareboat Charterer Parent (during the Bareboat Charter Period) shall not, be the creditor in respect of Financial Indebtedness other than:
|
|
(i)
|
advances to crew;
|
|
(ii)
|
in connection with any spares or pooling arrangements (approved by the Facility Agent (acting on the instructions of the Majority Lenders acting reasonably)) or sale of equipment relating to the Vessel entered into by the Owner, the Bareboat Charterer or the Bareboat Charterer parent as relevant, in the ordinary course of its business;
|
|
(iii)
|
deposits placed with banks or the providers of goods and services entered into by the Owner, the Bareboat Charterer or the Bareboat Charterer Parent as relevant, in the ordinary course of its business; or
|
|
(iv)
|
in relation to the Owner only, pursuant to its obligations to a Swap Bank under a Swap Agreement.
|
(d)
|
The Owner must not, and shall procure that the Bareboat Charterer (during the Bareboat Charter Period) and the Bareboat Charterer Parent (during the Bareboat Charter Period) shall not, create any Subsidiary (other than in the case of the Bareboat Charterer Parent, the Bareboat Charterer), provided that, without prejudice to the provisions of Clauses 16.17 and 16.22 or any other provision of the Finance Documents, the Owner may create Subsidiaries, the sole purpose of those Subsidiaries being to act as the operating company and/or the bareboat charterer of the Vessel, as a means for the Owner to utilise any such Subsidiaries to operate for and/or charter the Vessel to a Charterer.
|
(a)
|
without prejudice to Clause 16.12(a), shall procure that the Mortgage and any other security conferred by it, the Bareboat Charterer (during the Bareboat Charter Period), the Bareboat Charterer Parent (during the Bareboat Charter Period)or the Operator (during the Operator Period) under any Security Document is registered as a first priority interest with the relevant authorities within the period prescribed by Applicable Law and is maintained and perfected with the relevant authorities;
|
(b)
|
shall at its own cost do all that it can to ensure that any Finance Document validly creates the obligations and Security Interests which it purports to create; and
|
(c)
|
without limiting the generality of paragraph (a) above, shall at its own cost promptly register, file, record or enrol any Finance Document with any relevant court or authority, pay any stamp, registration or similar tax payable in respect of any Finance Document, give any notice or take any other step which, in the reasonable opinion of the Facility Agent, is or has become necessary 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.
|
(a)
|
procure and maintain, with effect from the Delivery Date, the valid and effective permanent registration of the Vessel under the flag of the Marshall Islands or such other flag as is satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders (acting in good faith but otherwise in their absolute discretion)), and shall ensure nothing is done or omitted by the Owner, the Bareboat Charterer, the Manager or the Operator and shall use reasonable endeavours to ensure that nothing is done or omitted to be done by any third party by which the registration of the Vessel would or might be defeated or imperilled;
|
(b)
|
not change the name or port of registration of the Vessel without the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders) (such consent not to be unreasonably withheld or delayed); and
|
(c)
|
ensure that the Vessel complies in all respects with Applicable Laws from time to time applicable to vessels registered under the laws and flag of the Marshall Islands or such other flag (an Alternative Flag) under which the Vessel may be registered from time to time in accordance with this Agreement, provided that if at any time an Alternative Flag is not a signatory to all International Maritime Organization Assembly resolutions and regulations to which the Marshall Islands is a signatory, then the Owner shall ensure, and shall procure that the Bareboat Charterer, the Manager and the Operator ensure, that the Alternative Flag issues a certificate of equivalency of the Vessel in respect of each such International Maritime Organization Assembly resolution and regulation.
|
(a)
|
maintain and preserve the Vessel in good working order and repair (ordinary wear and tear excepted), seaworthy, in efficient operating condition and, in any event, to a standard at least equivalent to vessels managed and/or operated by the Manager and Ocean Rig's group and the recommendations of the Builder;
|
(b)
|
ensure that the Vessel is surveyed from time to time as required by the Classification Society in which the Vessel is entered at that time;
|
(c)
|
maintain the highest classification of the Vessel with the Classification Society or, if such classification is not available, with the highest equivalent classification in another internationally recognised classification society of like standing acceptable to the Facility Agent (acting on the instructions of the Majority Lenders), free of all overdue requirements and overdue recommendations of that classification society or register;
|
(d)
|
maintain and keep up to date the Technical Records in English and in compliance with all Applicable Laws relating to the Vessel and the requirements of the Classification Society;
|
(e)
|
maintain and keep the Software Records up to date;
|
(f)
|
comply in all material respects with all Software Licences and use its best endeavours to procure that all Software Licenses are capable of assignment;
|
(g)
|
procure that all repairs to or replacement of any damaged, worn or lost parts or equipment shall be effected in such manner (both as regards workmanship and quality of materials) as not to materially diminish the value of the Vessel or cause damage to the Environment;
|
(h)
|
not remove any material part of the Vessel, any part or any other material item of equipment installed on the Vessel unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Finance Parties, and becomes on installation on the Vessel the property of the Owner and subject to the security constituted by the relevant Security Document(s) provided that, for the avoidance of doubt, the Owner, the Bareboat Charterer or the Operator may install and remove equipment owned by a third party if the equipment can be removed without any risk of damage to the Vessel or the Environment and does not affect the class, flag or custody transfer certification; and
|
(i)
|
without prejudice to paragraph (h) not without prior written consent of the Facility Agent not to be unreasonably withheld (acting on the instructions of the Majority Lenders), cause or permit to be made any substantial change in the structure, machinery, equipment, control systems, type or performance characteristics of the Vessel other than modifications required by the Classification Society or Applicable Law.
|
(a)
|
operate the Vessel and cause the Vessel to be operated in a manner consistent in all material respects with any Applicable Law;
|
(b)
|
not cause or permit the Vessel to trade with, or within the territorial waters of, any country in which her safety may be imperilled by exposure to terrorism;
|
(c)
|
not cause or permit the Vessel to be employed in any manner which will or may give rise to any reasonable degree of likelihood that the Vessel would be liable to arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize;
|
(d)
|
not cause or permit the Vessel to be employed in any trade or business which is forbidden by Applicable Law or is illicit or in carrying goods which are illicit or prohibited under any Applicable Law;
|
(e)
|
in the event of hostilities in any part of the world (whether war be declared or not) not cause or permit the Vessel to be carrying any contraband goods and/or trading in any zone after it has been declared a war zone by any authority or by any of the Vessel's war risks Insurers unless the Vessel's Insurers shall have confirmed to the Owner or the Bareboat Charterer that the Vessel is held covered under the Obligatory Insurances or under a government scheme that gives comparable protection for the voyage(s) in question; and
|
(f)
|
not charter the Vessel with any foreign country or national of any foreign country which is the subject of sanctions imposed by the United Nations or is specified by legislation or regulations of the flag state under which the Vessel is registered and such that, if the earnings or any part of the earnings were derived from such charter, that fact would render any Finance Document or the security conferred by the Security Documents unlawful.
|
(a)
|
pay and discharge all obligations and liabilities whatsoever which have given or may give rise to liens (other than Permitted Liens) on or claims enforceable against the Vessel and take all reasonable steps to prevent a threatened arrest of the Vessel;
|
(b)
|
notify the Facility Agent promptly in writing of the levy or other distress on the Vessel or its arrest, detention, seizure, condemnation as prize, compulsory acquisition or requisition for title or use and (save in the case of compulsory acquisition or requisition for title or use or any other event that would, with the passage of time, constitute a Total Loss of the Vessel) obtain the release of the Vessel within twenty-one (21) days;
|
(c)
|
pay and discharge when due all dues, taxes, assessments, governmental charges, fines and penalties lawfully imposed on or in respect of the Vessel, the Bareboat Charterer, the Operator or the Owner except those which are being disputed in good faith by appropriate proceedings (and for the payment of which adequate reserves or security are at the relevant time maintained or provided or for which indemnity or liability insurance cover for at least the full amount in dispute has been
|
(d)
|
pay and discharge all other obligations and liabilities whatsoever in respect of the Vessel and the Obligatory Insurances except those which are being disputed in good faith by appropriate proceedings (and for the payment of which adequate reserves or security are at the relevant time maintained or provided or for which indemnity or liability insurance cover for at least the full amount in dispute has been obtained by the Owner, or as the case may be, by the Bareboat Charterer or the Operator, from underwriters or insurance companies approved by the Facility Agent (acting on the instructions of the Majority Lenders (acting reasonably)) and provided that the continued existence of those obligations and liabilities in respect of the Vessel and the Obligatory Insurances does not give rise to any reasonable degree of likelihood that the Vessel would be liable to arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize and provided always that the Vessel remains properly managed and insured at all times in accordance with the terms of this Agreement.
|
(a)
|
exercise its or their rights and comply with its or their material obligations under each Finance Document and Related Contract to which it is a party;
|
(b)
|
not without the consent of the Facility Agent (acting on the instructions of the Majority Lenders acting reasonably):
|
|
(i)
|
make or enter into (and shall procure that Ocean Rig, the Bareboat Charterer, the Operator and the Manager shall not make or enter into) any amendments, changes or variations to, or assign, transfer, extend, terminate, suspend or abandon any of the Related Contracts (and to the extent necessary it will withhold its consent to any such amendment, assignment, transfer, termination, suspension or abandonment) other than an amendment, change or variation of a non-material or administrative nature (and, for the avoidance of doubt, any amendments, changes or variations to the Shipbuilding Contract which would or may delay the Delivery Date by three months or more would in all cases be deemed a "material" amendment, change or variation);
|
|
(ii)
|
take any action, enter into any document or agreement or omit to take any action or to enter into any document or agreement which a reasonable shipowner in the position of the Owner could reasonably be expected to know should be taken or entered into which, in any such case, would cause any Related Contract to be terminated or to cease to remain in full force and effect and shall use all reasonable endeavours to procure that each other party to any Related Contract does not take any action, enter into any document or agreement or omit to take any action or to enter into any document or agreement which would, or could reasonably be expected to, cause any Related Contract to cease to remain in full force and effect;
|
|
(iii)
|
release the Builder or the Charterer from any of its material obligations under the Shipbuilding Contract or the Drilling Charter, as the case may be; or
|
|
(iv)
|
permit (and will procure that no Other Owner shall permit) any amendments, changes or variations to, or assignments, transfers, termination, suspension or abandonment of any of the Other Shipbuilding Contract (and to the extent necessary it will procure the Other Owner will withhold its or their consent to any such amendment, change, variation, assignment, transfer, termination, suspension or abandonment) other than an amendment of a non-material or administrative nature; or
|
|
(v)
|
permit, or agree to, or effect under the Bareboat Charter, any adjustment to the Remuneration of the Bareboat Charterer under, and as that term is defined in, the Bareboat Charter; and
|
(c)
|
not exercise its rights under Article I paragraph 5 of the Shipbuilding Contract to approve any relevant subcontractor under the Shipbuilding Contract without the Facility Agent's (acting on the instructions of the Majority Lenders) prior written consent.
|
(a)
|
comply in all material respects with all applicable Environmental Laws and Environmental Approvals including, without limitation, requirements relating to the establishment of financial responsibility (and shall require that all Environmental Affiliates of the Owner, the Bareboat Charterer, the Operator and the Manager comply in all material respects with all applicable Environmental Laws and obtain and comply with all required Environmental Approvals, insofar as such Environmental Laws and Environmental Approvals relate to the Vessel or her operation or her carriage of cargo);
|
(b)
|
comply in all material respects with their obligations under and in accordance with health and safety requirements of any Drilling Charter; and
|
(c)
|
promptly upon becoming aware notify the Facility Agent of:
|
|
(i)
|
any Environmental Claim in excess of US$2,500,000 which is current or, to its knowledge, pending or threatened against it or any Environmental Affiliate relating to the Vessel or her operation or her carriage of cargo; or
|
|
(ii)
|
any fact or circumstances reasonably likely to give rise to an Environmental Claim in excess of US$2,500,000 against it or any Environmental Affiliate relating to the Vessel or her operation or her carriage of cargo; or
|
|
(iii)
|
any suspension, revocation or modification of any Environmental Approval obtained by the Owner, the Bareboat Charterer, the Operator the Manager or the Charterer relating to the Vessel or her operation or her carriage of cargo; or
|
|
(iv)
|
any Release of Hazardous Materials by or in respect of the Vessel or caused by the Vessel or its operations which could lead to an Environmental Claim in excess of US$250,000,
|
16.19
|
Information regarding the Vessel
|
(a)
|
The Owner shall upon becoming aware of the same, and shall procure that the Bareboat Charterer (during the Bareboat Charter Period), the Operator (during the Operator Period) and the Manager shall upon the earlier of (i) becoming aware of the same and (ii) the time when a prudent manager ought reasonably to have become aware of the same, at all times after the Delivery Date:
|
|
(i)
|
promptly notify the Facility Agent of the occurrence of any accident, casualty or other event which has caused or resulted in or may cause or result in the Vessel being or becoming a Total Loss;
|
|
(ii)
|
promptly notify the Facility Agent of any requirement or recommendation made by any Insurer or the Classification Society or by any competent authority which is not complied with in a timely manner, disregarding any matter which cannot reasonably be considered to be material;
|
|
(iii)
|
promptly notify the Facility Agent of any intended dry-docking of the Vessel (whether routine or otherwise);
|
|
(iv)
|
promptly notify the Facility Agent of any claim for a material breach of the ISM Code being made in connection with the Vessel or its operation;
|
|
(v)
|
promptly notify the Facility Agent of any claim for a material breach of the ISPS Code being made in connection with the Vessel or its operation;
|
|
(vi)
|
give to the Facility Agent from time to time on request such information, in electronic form by email attachments or hard copy, as the Facility Agent may reasonably require regarding the Vessel, its employment, position and engagements or regarding the Obligatory Insurances, and shall without undue delay send copies of all notices sent or received by it, the Bareboat Charterer, or the Manager under the terms of the Bareboat Charter or the Petrobras Brasil Charter or by the Operator under the Terms of the Services Contract (except for communications in the ordinary course of business);
|
|
(vii)
|
provide the Facility Agent with copies of the classification certificate of the Vessel and of all periodic damage or survey reports on the Vessel which the Facility Agent may reasonably request;
|
|
(viii)
|
promptly notify the Facility Agent when a condition of class is applied by the Classification Society;
|
|
(ix)
|
promptly notify the Facility Agent if the Vessel is detained by any port, governmental or quasi-governmental authority;
|
|
(x)
|
promptly notify the Facility Agent if the flag state or the Classification Society refuse to issue or withdraw any trading certification;
|
|
(xi)
|
promptly notify the Facility Agent of any fire on board the Vessel which requires the use of fixed fire systems;
|
|
(xii)
|
promptly notify the Facility Agent of any collision or grounding of the Vessel;
|
|
(xiii)
|
promptly notify the Facility Agent if the Vessel is taken under tow other than in respect of the routine operation of the Vessel;
|
|
(xiv)
|
promptly notify the Facility Agent of any death or serious injury to any person which occurs on board the Vessel;
|
|
(xv)
|
subject to any applicable restriction under a Drilling Charter give to the Facility Agent and its duly authorised representatives (at their own risk and expense) reasonable access to the Vessel but without interruption to her use or operation for the purpose of conducting on board inspections and/or surveys of the Vessel and the Technical Records;
|
|
(xvi)
|
if the Facility Agent reasonably believes an Event of Default may have occurred and is continuing, procure that the Facility Agent and its duly authorised representatives shall upon request be granted the right to inspect the records kept in respect of the Vessel by the Classification Society; and
|
|
(xvii)
|
if the Facility Agent reasonably believes an Event of Default may have occurred and is continuing, furnish to the Facility Agent from time to time upon reasonable request certified copies of the ship's log in respect of the Vessel.
|
(b)
|
The Owner shall, and shall procure that the Bareboat Charterer (during the Bareboat Charter Period), the Operator (during the Operator Period) and the Manager shall, upon becoming aware of the same, during the Pre-Delivery Period, notify the Facility Agent of any accident, casualty or other event which has caused or resulted in or may cause or result in the Vessel as it is then constructed becoming a Total Loss or being reasonably considered as beyond economic repair.
|
(a)
|
The Owner shall procure that the proceeds from a sale or Total Loss of the Vessel (and during the Pre-Delivery Period, any proceeds from the Vessel under construction or buyer's supplies being deemed a total loss or being reasonably considered beyond economic repair) shall promptly upon receipt by the Owner or the Bareboat Charterer, be paid to the Security Trustee for application in accordance with clause 10 of the DPP.
|
(b)
|
For so long as the Owner or the Bareboat Charterer holds any such proceeds as referred to in paragraph (a), it shall, and the Owner shall procure that the Bareboat Charterer shall, do so on trust for the Security Trustee.
|
(c)
|
The Owner will not sell or agree to sell the Vessel and will procure that the Sister Owner will not sell or agree to sell the Sister Vessel unless the Owner can demonstrate to the Facility Agent to its satisfaction that:
|
|
(i)
|
the Owner will upon such sale have sufficient funds to repay the Loans in full and all other amounts outstanding hereunder in the case of the sale of the Vessel or
|
|
(ii)
|
in the case of the Sister Vessel, the Owner will upon such sale be in compliance with the Leverage Ratio.
|
(a)
|
The Owner shall not let, or permit to be let, the Vessel on demise, time, consecutive voyage or voyage charter for any period or to any person other than to a Charterer under a time charter party (a Drilling Charter) in terms satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) with an Approved Charterer and, other than in respect of the Petrobras Brasil Charter, with an Approved Rate.
|
|
(i)
|
for a time charter period of two years or more (but less than three years), the daily rate on its own results in a minimum annual projected Net Cash Flow of US$116,000,000 and the minimum daily rate is US$545,000;
|
|
(ii)
|
for a time charter period of three years or more (but less than five years), the daily rate on its own results in a minimum annual projected Net Cash Flow of US$129,000,000 and the minimum daily rate is US$550,000; or
|
|
(iii)
|
for a time charter period of five years or more, the daily rate on its own results in a minimum annual projected Net Cash Flow of US$116,000,000 and the minimum daily rate is US$510,000.
|
(b)
|
The Owner shall (i) at least twelve (12) months prior to the expiry date (howsoever described) of any Drilling Charter (other than the Petrobras Brasil Charter) and (ii) at least six (6) months prior to the expiry date
|
(howsoever described) of the Petrobras Brasil Charter:
|
|
(i)
|
procure that a replacement Drilling Charter is entered into having a minimum term (excluding any optional extensions) of 2 years;
|
|
(ii)
|
execute a deed of assignment of time charter and earnings in substantially the same form as the Charter Assignment and shall procure that any notices, and shall use best efforts to procure that any acknowledgements, thereto are duly executed by the relevant parties to them; and
|
|
(iii)
|
provide a tax opinion from its tax advisers (which may be disclosed to the Finance Parties) in respect of potential withholding and income tax payable under the Transaction Documents in form and substance satisfactory to each of the Finance Parties.
|
(c)
|
The Owner shall not, and in relation to the Petrobras Brasil Charter shall procure that the Bareboat Charterer shall not:
|
|
(i)
|
allow the Vessel to be sub-chartered by any Charterer without the consent of the Facility Agent not to be unreasonably withheld (acting on the instructions of the Majority Lenders); or
|
|
(ii)
|
permit any transfer of the Charterer's rights and/or obligations under a Drilling Charter without the prior written consent of the Facility Agent (acting on the instructions of all of the Lenders); or
|
|
(iii)
|
in relation to the Petrobras Brasil Charter, consent to any new work location for the Vessel outside of Brazil without the prior written consent of the Facility Agent (acting on the instructions of all of the Lenders), or the Facility Agent (acting reasonably) only where the Lenders' position with regard to tax, cash flows or security is not materially affected and the Facility Agent shall give notice to the Lenders of any such new work location consented to.
|
(d)
|
The Owner shall procure that in relation to the Petrobras Brasil Charter, the Bareboat Charterer shall provide details to the Facility Agent of any change to the consortium parties as are set out in the recitals at the start of the Petrobras Brasil Charter, promptly following any such change.
|
(a)
|
In the event of the occurrence at any time during the Post-Completion Period of (i) one of the events described in Clauses 6.2(e) or 6.2(f) which would otherwise give rise to an immediate Mandatory Prepayment Event or (ii) an Event of Default set out in Clauses 18.6 (Insolvency), 18.7 (Insolvency proceedings), 18.8 (Creditors' process), 18.9 (Cessation of business), 18.10 (Failure to pay final judgment) and 18.11 (Material adverse change) in respect of the Charterer or the Manager only, then, subject to the conditions set out in Clause 16.23(b) below, no Mandatory Prepayment Event or Event of Default shall immediately arise and the Owner shall have the opportunity to cure the relevant default, breach or event (including by proposing a substitute charterer or manager) for a period of three (3) months from the date the relevant event or Event or Default occurs or, if later, the date that a prudent owner could reasonably be expected to have become aware of the occurrence of the relevant event or Event of Default (provided always that for the purposes of this paragraph (a), the Owner shall in any event be deemed to have become aware of the relevant event or Event of Default within thirty (30) days of the occurrence of such event or Event of Default) (the Cure Period);
|
(b)
|
The right of the Owner to effect a cure and the postponement of the relevant Mandatory Prepayment Event or Event of Default (as the case may be) pursuant to Clause 16.23(a) above shall be available only if:
|
|
(i)
|
there is no other Default existing at the time when the relevant event or Event of Default referred to in Clause 16.23(a) arises and no such other Default occurs at any time during the Cure Period; and
|
|
(ii)
|
any substitute charterer or manager and/or substitute charter or management agreement proposed by the Owner as the means of effecting a cure satisfies the
|
|
(iii)
|
the Owner procures that on the earlier of (i) the time at which Owner becomes aware of the occurrence of an Event of Default or the relevant event, or (ii) 30 days after the occurrence of an Event of Default or the relevant event referred to in Clause 16.23(a), there is deposited into the Debt Service Reserve Account such additional amount as will ensure that the balance standing to the credit of the Debt Service Reserve Account following such deposit is equal to at least the amount required to pay the aggregate amount of interest and principal repayments accruing under this Agreement during the period of nine (9) months following the date of such deposit. The Owner shall not be entitled to use any funds then standing to the credit of any of the Accounts to effect such deposit.
|
(c)
|
If the Owner or, as the case may be, the Bareboat Charterer proposes to enter into a substitute charter or substitute management agreement, the Owner shall and shall procure that the Bareboat Charterer shall, in relation to a substitute charter, comply fully with all of the provisions of Clause 16.22 and, in relation to a substitute management agreement, the Owner shall and shall procure that the Bareboat Charterer shall, upon the execution of the substitute management agreement, execute a security assignment of such substitute management agreement together with all notices and acknowledgements thereto all in the same form (mutatis mutandis) as the then existing security over the Management Agreement or otherwise in form and substance satisfactory to the Majority Lenders.
|
(d)
|
For the avoidance of doubt, should any of the conditions set out in Clause 16.23(b) not be, or cease to be, met, or should the Owner not effect a cure of the relevant breach, default or event within the Cure Period, the relevant Mandatory Prepayment Event or, as the case may be, Event of Default shall immediately arise and the Finance Parties shall be all of the rights flowing therefrom.
|
(e)
|
If the Owner effects a cure of the relevant breach, Event of Default or other event within the Cure Period pursuant to this Clause 16.23, the Owner may withdraw any such additional amount deposited into the Debt Service Reserve Account in accordance with Clause 16.23(b)(iii).
|
(a)
|
at all times comply, and be responsible for compliance by itself and by the Vessel, with the mandatory requirements of the ISM Code;
|
(b)
|
at all times after the Delivery Date ensure that the Vessel has a valid Safety Management Certificate (or, following delivery until a final certificate is issued, a valid interim Safety Management Certificate) which is held on board the Vessel and that the Manager holds a valid Document of Compliance for the Vessel, a copy of which is held on board the Vessel;
|
(c)
|
promptly notify the Facility Agent of any actual or, upon becoming aware of the same, threatened withdrawal of an applicable Safety Management Certificate or Document of Compliance;
|
(d)
|
promptly notify the Facility Agent of the identity of the person ashore designated for the purposes of paragraph 4 of the ISM Code and of any change in the identity of that person; and
|
(e)
|
promptly upon becoming aware of the same notify the Facility Agent of the occurrence of any accident or major non-conformity requiring action under the ISM Code.
|
(a)
|
The Owner shall give to the Facility Agent and the Technical Adviser notice of any meetings of the Owner or the Owner's representatives with the Builder or between the Owner or the Owner's representatives and any Charterer or the Charterer's representatives where material divergence from the Specification (as defined in the Shipbuilding Contract) is being discussed. Following any such meeting, the Owner shall notify the Facility Agent and the Technical Adviser of the outcome of such meeting. Such advance notice and notice of the outcome shall be contained in the quarterly technical reports referred to in Clause 15.3(d).
|
(b)
|
The Owner shall make reasonable efforts to obtain the Builder's consent so that the Facility Agent (at the Facility Agent's own risk and expense) or its representative has a right to attend, in a capacity as an observer only, the shipyard on an occasional basis and to be present at the sea trials and first drill trial of the Vessel.
|
(c)
|
The Owner will give reasonable notice to the Facility Agent of the time and location of any of the meetings, trials and voyages referred to in paragraph (b) above.
|
(a)
|
Project milestone for Instalment Loan 2:
|
(b)
|
Project milestones for Instalment Loan 3:
|
(c)
|
Project milestones for Delivery Loan:
|
(a)
|
promptly file all Tax reports and returns required to be filed by it in any jurisdiction; and
|
(b)
|
promptly pay all Taxes or, if any Tax is being contested in good faith and by appropriate means, ensure an adequate reserve is set aside for payment of that Tax.
|
(a)
|
The Owner will not permit the Leverage Ratio from time to time to be lower than 125%, such Leverage Ratio to be tested as provided in paragraph (c) below, provided that during the six month period prior to the expiry date (howsoever described) of any Drilling Charter (the Drilling Charter Final Period) the Owner will not permit the Leverage Ratio from time-to-time to be lower than 140 per cent.
|
(b)
|
If on any determination date the Leverage Ratio is less than 125%, or, during the Drilling Charter Final Period, 140%, the Owner will immediately following a request of the Facility Agent to do so:
|
|
(i)
|
prepay such amount of the Loans as will ensure that the Leverage Ratio is not less than or equal to 125%, or, during the Drilling Charter Final Period, 140 per cent; or
|
|
(ii)
|
provide or cause to be provided to the Facility Agent such additional funds into the Debt Service Reserve Account as is necessary to bring the Leverage Ratio equal to or not less than 125%, or, during the Drilling Charter Final Period, 140 per cent; or
|
|
(iii)
|
provide such additional security, in all respects satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders), such that the Leverage Ratio is not less than or equal to 125%, or, during the Drilling Charter Final Period, 140 per cent.
|
(c)
|
The Facility Agent shall be entitled to test such Leverage Ratio as of:
|
|
(i)
|
the Final Completion Date;
|
|
(ii)
|
each anniversary thereof;
|
|
(iii)
|
the first date of any Drilling Charter Final Period;
|
|
(iv)
|
upon the notice of the Sister Owner of its intention to sell a Vessel; and
|
|
(v)
|
at any time on notice from the Facility Agent after the occurrence of a Default which is continuing.
|
(d)
|
The Owner will procure a valuation on the basis described in the definition of Market Value on or before (but dated not more than thirty (30) days prior to) the date on which Leverage Ratio is to be calculated or in the case of paragraph (c) (i) promptly on demand and provide such valuation to the Facility Agent who will verify such valuation by reference to the information provided by the Owner.
|
(e)
|
The Owner will procure in favour of the Facility Agent and the Approved Brokers, all such information, as they may reasonably (having regard to the use and operation of the Vessel) require in order to effect such valuations.
|
(f)
|
All valuations shall be at the expense of the Owner.
|
(a)
|
an assignment absolutely, subject to a proviso for re-assignment on redemption, of all of the Owner's rights in respect of the Operational Software, the Software Licences and the Software Records; and
|
(b)
|
a chattel mortgage in relation to the Technical Records.
|
17.
|
INSURANCES
|
17.1
|
Scope of Obligatory Insurances
|
(a)
|
report on and monitor the Builder's compliance with the Construction Insurances as detailed in Article XVII of the Shipbuilding Contract and report on and confirm its compliance with the terms of the Construction Insurances in respect of the Vessel and the equipment the subject of the Shipbuilding Contract and the Buyer Supplies (as such term is defined in the Shipbuilding Contract). The Owner shall procure that its Buyer Supplies are insured for all risks of physical loss or damage as is typically insured, and that the Owner is insured for protection and indemnity risks during sea trials either under the Builder's insurance policy or, if this is not possible, the Owner shall have protection and indemnity insurance effective from the commencement of the sea trials for an amount not less than US$300,000,000 (the amount to be reviewed and mutually agreed to be reduced if the Owners' liability during the sea trials is less than the above amount). The Owner shall also have general third party liability insurance effective from the commencement of the sea trials for not less than US$25,000,000 to the extent such insurance policy will be available;
|
(b)
|
at all times after the Delivery Date keep the Vessel insured in the Required Insurance Amount, with a deductible of no more than US$15,000,000, in Dollars against fire and usual marine risks (including Excess Risks), and if requested by the Facility Agent all spares, stores and other property held elsewhere than on the Vessel against all risks of physical loss or damage as is typically insured, in each case in the name of the Owner and the Bareboat Charterer (during the Bareboat Charter Period) and with the interest of the Security Trustee noted as mortgagee or assignee with underwriters or insurance companies approved by the Facility Agent and (as applicable) through brokers approved by the Facility Agent (acting on the instructions of the Majority Lenders), and by policies in form and content approved by the Facility Agent (acting on the instructions of the Majority Lenders);
|
(c)
|
at all times after the Delivery Date keep the Vessel insured in at least the Required Insurance Amount in the same manner as above against war risks (including, without limitation), (a) those risks covered by the standard form of English marine policy with Institute War and Strike Clauses (Time) (1/10/83) attached or similar cover and (b) war, terrorist or similar protection and indemnity risks cover excluded from the protection and indemnity risks covered by the entry of the Vessel with the relevant protection and indemnity association by reason of any exclusion clauses contained in such entry, and all spares, stores, and other property held elsewhere than on the Vessel against, at the minimum, riots, strikes, civil commotion and terrorism, in each case either:
|
|
(i)
|
with underwriters or insurance companies approved by the Facility Agent (acting on the instructions of the Majority Lenders) and by policies in form and content approved by the Facility Agent (acting on the instructions of the Majority Lenders); or
|
|
(ii)
|
by entering the Vessel in an approved war risks association;
|
(d)
|
at all times after the Delivery Date keep, or procure the Bareboat Charterer keeps the Vessel entered in an approved protection and indemnity association against all risks as are normally covered by such protection and indemnity association, including without limitation, pollution risks, the proportion not recoverable in case of collision under the running down clause inserted in the ordinary Hull and Machinery policies and Specialist Operations coverage, in the name of the Owner and during the Bareboat Charter Period the Bareboat Charterer for claims which the Owner
|
|
(i)
|
the higher of the minimum amount stipulated in any Drilling Charter and US$500,000,000 or such other amount of cover against P&I including pollution risks as shall at any time be comprised in the basic entry of the Vessel with either a protection and indemnity association which is a member of either the International Group of P&I Clubs (or any successor organisation designated by the Facility Agent for this purpose); or
|
|
(ii)
|
if the International Group or any such successor ceases to exist or ceases to provide or arrange any cover for pollution risks (or any supplemental cover for pollution risks over and above that afforded by the basic entry of the Vessel with its protection and indemnity association), such aggregate amount of cover against pollution risks as shall be generally available on the open market and by basic entry with a protection and indemnity association for ships of the same type, size, age and flag as the Vessel,
|
(e)
|
at all times following the Final Completion Date, maintain in full force and effect loss of hire insurance, on a daily amount fixed and agreed basis, in respect of the Vessel subject to a deductible of 45 days (or minimum deductible available by loss of hire underwriters) per incident or occurrence and for a minimum indemnity period of 180 days with underwriters or insurance companies approved by the Facility Agent (acting on the instructions of the Majority Lenders) in form and content approved by the Facility Agent (acting on the instructions of the Majority Lenders), provided always that the obligation of the Owner or during the Bareboat Charter Period the Bareboat Charterer to maintain such loss of hire insurance shall cease if a prudent owner of a vessel similar to the Vessel and employed on a similar basis, acting reasonably, would consider the cost of the loss of hire insurance to be commercially unacceptable;
|
(f)
|
at all times following the Final Completion Date, if and as requested from time to time by the Facility Agent, to maintain in full force and effect insurance(s) in respect of such other matters of whatsoever nature and howsoever arising in respect of which insurance would be available to a prudent owner of the Vessel; and
|
(g)
|
comply or procure compliance with the terms and conditions of the Obligatory Insurances (including, but not limited to, making any declarations required by such insurances in order to maintain cover for operating within any waters where it is required to be located under a Drilling Charter, which declarations the Owner or during the Bareboat Charter Period the Bareboat Charterer shall promptly copy to the Facility Agent), not do, consent to or permit any act or omissions which might invalidate or render unenforceable the whole or any part of the Insurances.
|
(a)
|
a mortgagee's interest marine insurance providing for the indemnification of the Finance Parties for any Losses under or in connection with any Finance Document which directly or indirectly result from loss of or damage to the Vessel or a liability of the Vessel or the Owner or the Bareboat Charterer, 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 anyallegation concerning:
|
|
(i)
|
any act or omission on the part of the Owner, or the Bareboat Charterer of any operator or manager of the Vessel or of any officer, employee or agent of the Owner or of any such person, including any breach of warranty or condition or any nondisclosure relating to such Obligatory Insurance;
|
|
(ii)
|
any act or omission, whether deliberate, negligent or accidental, or any knowledge or privity of the Owner or the Bareboat Charterer or any other person referred to in subparagraph (i) above, or of any officer, employee or agent of an Owner or the Bareboat Charterer or of such a person, including the casting away or damaging of the Vessel and/or the Vessel 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 policy providing for the indemnification of the Finance Parties against, amongst other things, any Losses or other consequences of any Environmental Claim, including the risk of expropriation, arrest or any form of detention of the Vessel, or the imposition of any Security Interest over the Vessel and/or any other matter capable of being insured against under a mortgagee's interest additional perils (pollution) policy whether or not similar to the foregoing.
|
(a)
|
not without the prior consent of the Facility Agent (acting on the instructions of the Majority Lenders) alter any Obligatory Insurance nor make, do, consent or agree to any act or omission which would or might render any Obligatory Insurance invalid, void, voidable or unenforceable or render any sum paid out under any Obligatory Insurance repayable in whole or in part;
|
(b)
|
not cause or permit the Vessel to be operated in any way inconsistent with the provisions or warranties of, or implied in, or outside the cover provided by, any Obligatory Insurance or to be engaged in any voyage or to carry any cargo not permitted by any Obligatory Insurances;
|
(c)
|
duly and punctually pay all premiums, calls, contributions or other sums of money from time to time payable in respect of any Obligatory Insurance;
|
(d)
|
at least 28 days before the relevant policies, contracts or entries expire, notify the Facility Agent of the names of the insurance companies and/or the war risks and protection and indemnity associations proposed to be employed for the purposes of the renewal of such Obligatory Insurances and of the amounts in which such Obligatory Insurances are proposed to be renewed and the risks to be covered, and to procure that appropriate instructions for the renewal of such
|
(e)
|
forthwith upon the effecting of any Obligatory Insurance, ensure that all approved brokers (if applicable) and/or approved insurers and the approved P&I Club provide the Facility Agent 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 substantially in the forms scheduled to or referred to in the Delivery General Assignment or such other form acceptable to the Facility Agent, in each case stating the full particulars (including the dates and amounts) of the insurance, and on request produce the receipts for each sum paid by it pursuant to paragraph (c) above, and including undertakings from the approved brokers (if applicable) or the approved underwriters or insurance companies that:
|
|
(i)
|
they will have endorsed on each policy, when issued, a loss payee provision and notice of assignment, in the forms scheduled to the Delivery General Assignment and the Bareboat Charterer Insurances Assignment;
|
|
(ii)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee;
|
|
(iii)
|
they will advise the Facility Agent forthwith of any material change to the terms of the Obligatory Insurances;
|
|
(iv)
|
they will upon written application by the approved brokers (if applicable) to the Facility Agent notify the Facility Agent, not less than 28 days before the expiry of the Obligatory Insurances, in the event of their not having received notice of renewal instructions from the Owner or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Facility Agent of the terms of the instructions;
|
|
(v)
|
they will not exercise any rights of cancellation in respect of default in payment of premiums without giving the Facility Agent 28 days' notice in writing, either by letter or electronically transmitted message, and a reasonable opportunity for the Facility Agent to pay any premiums outstanding;
|
|
(vi)
|
if any of the Obligatory Insurances form part of a fleet cover, their lien on the fleet policies shall be confined to the outstanding premiums due on the Vessel only;
|
|
(vii)
|
they shall neither set off against any claim(s) and/or returns of premium(s) in respect of the Vessel any premiums due in respect of other vessels under the fleet cover or any premiums due for other insurances, nor cancel the insurance for reason of nonpayment of premiums for other vessels under the fleet cover or of premiums for such other insurances; and
|
|
(viii)
|
they will arrange for a separate policy to be issued in respect of the Vessel forthwith upon being so requested by the Facility Agent;
|
(f)
|
not settle, release, compromise or abandon any claim in respect of any Total Loss unless the Facility Agent (acting promptly and on the instructions of the Majority Lenders, acting reasonably)
|
(g)
|
arrange for the execution and delivery of such guarantees as may from time to time be required by any protection and indemnity or war risks club or association in accordance with the rules of such club or association;
|
(h)
|
procure that the interest of the Security Trustee as mortgagee or assignee is noted on all policies of insurance; and
|
(i)
|
in the event that the Owner receives payment of any moneys in respect of Insurances, save as provided in the loss payable clauses scheduled to the Delivery General Assignment, or the Bareboat Charterer receives payment of any moneys, save as provided in the loss payable clauses scheduled to the Bareboat Charterer Insurances Assignment, forthwith pay over the same to the Security Trustee and, until paid over, such moneys shall be held in trust for the Security Trustee by the Owner, or as the case may be, the Bareboat Charterer.
|
(a)
|
the events referred to in Clauses 18.6 to 18.11 shall not, in respect of the Builder, constitute an Event of Default if:
|
|
(i)
|
the relevant event is remedied to the satisfaction of the Facility Agent (acting on the instructions of the Majority Lenders) and on terms (and with replacement security) approved by the Facility Agent (acting on the Instructions of the Majority Lenders); or
|
|
(ii)
|
the Builder is substituted by another builder satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) and on terms (and with replacement security) approved by the Facility Agent (acting on the Instructions of the Majority Lenders), in each case by a date that falls three (3) months after the occurrence of the relevant event; and
|
(b)
|
the events referred to in Clauses 18.6 to 18.11 shall not, in respect of the Charterer or Manager, constitute an Event of Default if a substitute charterer or substitute manager is appointed, or the relevant event is otherwise cured by the Owner, in accordance with Clause 16.23.
|
(a)
|
is caused by technical or administrative error; and
|
(b)
|
where such payment is a scheduled payment, is remedied within one Business Day of the due date; or
|
(c)
|
where such payment is on-demand, is remedied within three Business Days of the date of demand.
|
(a)
|
is capable of remedy; and
|
(b)
|
is remedied within 30 days of the earlier of the Facility Agent giving notice of the breach to the Owner and the Owner, the Bareboat Charterer, the Operator, the Sponsor or Ocean Rig, as the case may be, becoming aware of the non-compliance, save in the case of non-compliance with:
|
|
(i)
|
Clause 16.11(a) (Security), Clause 16.12(a) (Registration of the Vessel), Clause 16.22(b) (Charters), Clause 16.24 (Management Agreement) (save to the extent Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement) applies) or Clause 17.1 (Scope of Obligatory Insurances), for each of which the grace period for remedy shall be three days from the date the Facility Agent gives notice of the breach to the Owner, provided always that, in respect of Clause 17.1 (Scope of Obligatory Insurances) and clause 7.14 (Financial Covenants) of the Ocean Rig Guarantee, there shall be no grace period unless the Facility Agent (acting on the good faith and reasonable instructions of the Majority Lenders) is satisfied that the Finance Parties have neither suffered nor will, in the future, suffer any material detriment (whether financial, to their security position or otherwise howsoever) as a result of the non-compliance; or
|
|
(ii)
|
Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement) for which there shall be no grace period for remedy following expiry of the grace period provided in that Clause 16.23.
|
(a)
|
are capable of remedy; and
|
(b)
|
are remedied within 14 days of the Owner, the Bareboat Charterer, the Operator or, as the case may be, Ocean Rig receiving notice from the Facility Agent of the circumstances giving rise to the misrepresentation or breach of warranty.
|
(a)
|
Any Sister Event of Default occurs and is continuing; or
|
(b)
|
Any of the following occurs in respect of any of the Project Parties:
|
|
(i)
|
any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period);
|
|
(ii)
|
any of its Financial Indebtedness:
|
|
(A)
|
becomes prematurely due and payable;
|
|
(B)
|
is placed on demand; or
|
|
(C)
|
is capable of being declared by or on behalf of a creditor to be prematurely due and payable or of being placed on demand,
|
|
(iii)
|
any commitment for its Financial Indebtedness is cancelled or suspended as a result of an event of default (howsoever described),
|
(c)
|
A Bareboat Charter Termination Event occurs which is continuing.
|
(a)
|
it is, or is deemed for the purposes of any relevant applicable law to be, unable to pay its debts as they fall due or insolvent;
|
(b)
|
it admits its inability to pay its debts as they fall due;
|
(c)
|
it suspends making payments on any of its debts or announces an intention to do so;
|
(d)
|
by reason of actual or anticipated financial difficulties, it begins negotiations with any creditor for the rescheduling or restructuring of any of its indebtedness;
|
(e)
|
the value of its assets is less than its liabilities (taking into account contingent and prospective liabilities); or
|
(f)
|
a moratorium is declared in respect of any of its Financial Indebtedness; or
|
(g)
|
any similar local law process not described in (a) to (f) above.
|
(a)
|
Except as provided in paragraph (b) below, any of the following occurs in respect of any of the Project Parties:
|
|
(i)
|
any step is taken with a view to a moratorium, composition, assignment or similar arrangement with any of its creditors;
|
|
(ii)
|
a meeting of its shareholders, directors or other officers is convened for the purpose of considering any resolution to petition for or to file documents with a court or any registrar for its winding-up, administration or dissolution or any such resolution is passed;
|
|
(iii)
|
any person presents a petition or files documents with a court for its winding-up, administration or dissolution or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise);
|
|
(iv)
|
any Security Interest is enforced over any of its assets;
|
|
(v)
|
an order for its winding-up, administration or dissolution is made;
|
|
(vi)
|
any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, receiver and manager, judicial manager, administrator or similar officer is appointed in respect of it or any of its assets;
|
|
(vii)
|
its directors, shareholders or other officers request the appointment of, or give notice of their intention to appoint a liquidator, trustee in bankruptcy, judicial custodian, judicial manager, receiver and manager, compulsory manager, receiver, administrative receiver, receiver and manager, administrator or similar officer; or
|
|
(viii)
|
any other analogous step or procedure is taken in any jurisdiction.
|
(b)
|
Paragraph (a) above does not apply to a frivolous or vexatious petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within 14 days.
|
(a)
|
Any event occurs or circumstance arises in relation to the Vessel which results in any person making an Environmental Claim against any Finance Party and such Finance Party has not been indemnified by a person and on terms satisfactory to the relevant Finance Party in respect of such amount within 15 days after the date on which such Environmental Claim is made provided such Finance Party gives prompt notice of such claim to the Owner and has afforded the Owner (at its cost and expense) the right (with full co-operation of such Finance Party) to such action as it considers necessary or appropriate (acting reasonably) to defend or contest in its own name the validity or amount of such claim. The Owner may defend or contest the validity or amount of such claim in the name of the relevant Finance Party if such Finance Party is (acting in its absolute discretion) satisfied that:
|
|
(i)
|
such action has a reasonable chance of success and in reaching this conclusion such Finance Party shall have the right to require the Owner to obtain (at the cost of the Owner) the opinion of Queen's Counsel concerning the merits of the claim. Counsel shall be selected and instructed by the legal advisers to the Finance Party concerned;
|
|
(ii)
|
such Finance Party is satisfied that such claim will not materially damage its reputation or any part of its business affairs; and
|
|
(iii)
|
the scope of the provisions of Clause 23.2 (Other indemnities) will indemnify the relevant Finance Party against any and all costs, losses, expenses or liabilities arising
|
(b)
|
Any event occurs or circumstance arises in relation to the ownership or operation of the Vessel which results in criminal liability being imposed on any Finance Party except where such liability arises out of the gross negligence or wilful misconduct of such Finance Party.
|
(a)
|
If an Event of Default is outstanding, the Facility Agent may (and if the Majority Lenders so instruct it, shall), by notice to the Owner:
|
|
(i)
|
cancel the undrawn, uncancelled amount of the Commitments; and/or
|
|
(ii)
|
declare that all or part of any amounts outstanding under the Finance Documents are:
|
|
(A)
|
immediately due and payable; and/or
|
|
(B)
|
payable on demand by the Facility Agent.
|
(b)
|
The Owner hereby agrees that for the purposes of this Agreement service by the Facility Agent of a notice under and in accordance with paragraph (a) above shall constitute a valid and effective service of such notice and the Owner shall be deemed to have become liable to make any payments expressed in that notice upon service of such notice.
|
(a)
|
Each Lender and Administrative Party (other than the Facility Agent) irrevocably appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each Lender and Administrative Party irrevocably authorises the Facility Agent to:
|
|
(i)
|
perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions; and
|
|
(ii)
|
execute each Finance Document expressed to be executed by the Facility Agent.
|
(c)
|
Each Lender (in its capacity as a Lender and a (potential) Swap Bank hereby irrevocably authorises the Facility Agent to enter into the Dutch Parallel Debt Agreement on its behalf, to act as its agent thereunder and to effect any amendments, supplements and variations thereunder without further reference to or consent of the Lenders).
|
(d)
|
The Facility Agent has only those duties which are expressly specified in the Finance Documents. Those duties are solely of a mechanical and administrative nature. For the avoidance of doubt, those duties do not extend to any administration or other work which might result from any Lender transferring any of its rights and obligations under the Finance Documents to any person. Any such administration or other work shall be undertaken by the transferee.
|
(a)
|
If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and may exercise those rights and powers as though it were not an Administrative Party.
|
(b)
|
Each Administrative Party may:
|
|
(i)
|
carry on any business with the Owner, the Bareboat Charterer, the Bareboat Charterer Parent, the Operator, the Charterer, Ocean Rig or its related entities (including acting as an agent or a trustee for any other financing); and
|
|
(ii)
|
retain any profits or remuneration it receives under the Finance Documents or in relation to any other business it carries on with the Owner, the Bareboat Charterer, the Bareboat Charterer Parent, the Operator, the Charterer, Ocean Rig or its related entities.
|
(a)
|
rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person;
|
(b)
|
rely on any statement made by any person regarding any matters which may reasonably be assumed to be within its knowledge or within its power to verify;
|
(c)
|
engage, pay for and rely on professional advisers selected by it; and
|
(d)
|
act under the Finance Documents through its personnel and agents.
|
(a)
|
The Facility Agent is fully protected if it acts on the valid instructions of the Majority Lenders in the exercise of any right, power or discretion or any matter not expressly provided for in the Finance Documents. Any such instructions given by the Majority Lenders will be binding on all the Lenders. In the absence of instructions, in exercising the relevant right, power or discretion, the Facility Agent may act or refrain from acting as it considers to be in the best interests of all the Lenders.
|
(b)
|
The Facility Agent may assume that unless it has received notice to the contrary, any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised.
|
(c)
|
The Facility Agent may require the receipt of security satisfactory to it, whether by way of payment in advance or otherwise, against any liability or loss which it may incur in complying with the instructions of the Majority Lenders and may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received security satisfactory to it, whether by way of payment in advance or otherwise, against any liability or loss which it may incur in complying with the instructions.
|
(d)
|
The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings in connection with any Finance Document.
|
20.7
|
Responsibility
|
(a)
|
No Administrative Party is responsible to any other Finance Party for the adequacy, accuracy or completeness of any Finance Document or any other document or any statement or information (whether written or oral) made or supplied in connection with any Finance Document.
|
(b)
|
No Administrative Party is responsible for the legality, validity, effectiveness, adequacy, completeness or enforceability of any Finance Document or any other document.
|
(c)
|
Without affecting the responsibility of the Owner for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms that it:
|
|
(i)
|
has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent, the Operator, Ocean Rig or the Charterer and their related entities and the nature and extent of any recourse against any Party, the Bareboat Charterer, the Bareboat Charterer Parent, the Operator, Ocean Rig, or the Charterer or their assets); and
|
|
(ii)
|
has not relied exclusively on any information provided to it by any Administrative Party in connection with any Finance Document.
|
(a)
|
The Facility Agent is not liable or responsible to any other Lender or Administrative Party for any action taken or not taken by it in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
(b)
|
No Party (other than the relevant Administrative Party) may take any proceedings against any officers, employees or agents of another Administrative Party in respect of any claim it might have against that Administrative Party or in respect of any act or omission of any kind by that officer, employee or agent in connection with any Finance Document. Any officer, employee or agent of an Administrative Party may rely on this Clause 20.8 and enforce its terms under the Contracts (Rights of Third Parties) Act 1999.
|
(c)
|
The Facility Agent is not liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
(d)
|
Nothing in this Agreement will oblige any Administrative Party to satisfy any know your customer requirement in relation to the identity of any person on behalf of any Finance Party.
|
(e)
|
Each Finance Party confirms to each Administrative Party that it is solely responsible for any know your customer requirements it is required to carry out and that it may not rely on any statement in relation to those requirements made by any other person.
|
(a)
|
The Facility Agent is not obliged to monitor or enquire whether a Default has occurred. The Facility Agent is not deemed to have knowledge of the occurrence of a Default.
|
(b)
|
If the Facility Agent:
|
|
(i)
|
receives notice from a Party or any other party to a Transaction Document referring to this Agreement, describing a Default and stating that the event is a Default; or
|
|
(ii)
|
is aware of the non-payment of any principal or interest or any fee payable to a Finance Party (other than the Facility Agent or any of the Mandated Lead Arranger) under this Agreement,
|
(a)
|
The Facility Agent must promptly forward to the person concerned the original or a copy of any document which is delivered to the Facility Agent by a Party for that person.
|
(b)
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(c)
|
Except as provided above, the Facility Agent has no duty:
|
|
(i)
|
either initially or on a continuing basis to provide any Lender with any credit or other information concerning the risks arising under or in connection with the Finance Documents (including any information relating to the financial condition or affairs of the Owner or any of its related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before, on or after the date of this Agreement; or
|
|
(ii)
|
unless specifically requested to do so by a Lender in accordance with a Finance Document, to request any certificate or other document from the Owner, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator.
|
(d)
|
In acting as the Facility Agent, the agency division of the Facility Agent is treated as a separate entity from its other divisions and departments. Any information acquired by the Facility Agent which, in its opinion, is acquired by it otherwise than in its capacity as the Facility Agent may be treated as confidential by the Facility Agent and will not be treated as information possessed by the Facility Agent in its capacity as such.
|
(e)
|
The Owner irrevocably authorises the Facility Agent to disclose to the other Finance Parties any information which is received by it in its capacity as the Facility Agent, subject always to the requirements of confidentiality under Clause 28 (Disclosure of Information).
|
(f)
|
The Facility Agent is not obliged to disclose to any person any confidential information supplied to it by or on behalf of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator solely for the purpose of evaluating whether any waiver or amendment is required in respect of any term of the Finance Documents.
|
(a)
|
Without limiting the liability of the Owner, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator under the Finance Documents, each Lender shall indemnify the Facility Agent for that Lender's Pro Rata Share of any loss or liability incurred by the Facility Agent in acting as the Facility Agent (including without limitation any costs associated with effecting, maintaining or renewing any insurances in accordance with and subject to Clause 17.4 (Power of Facility Agent to insure) and acting in accordance with the instructions of the Majority Lenders in accordance with Clause 20.6 (Majority Lenders' instructions)) unless the Facility Agent has been reimbursed by the Owner under a Finance Document, except to the extent that the loss or liability is caused by the Facility Agent's gross negligence or wilful misconduct.
|
(b)
|
If a Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may after giving notice to that Party:
|
|
(i)
|
deduct from any amount received by it for that Party any amount due to the Facility Agent from that Party under a Finance Document but unpaid; and
|
|
(ii)
|
apply that amount in or towards satisfaction of the owed amount.
|
(a)
|
The Facility Agent may resign and appoint any of its Affiliates as successor Facility Agent by giving 30 days' notice to the other Finance Parties and the Owner.
|
(b)
|
Alternatively the Facility Agent may resign by giving written notice to the Finance Parties and the Owner, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c)
|
If no successor Facility Agent has been appointed under paragraph (b) above within 30 days after notice of resignation was given, the Facility Agent may appoint a successor Facility Agent.
|
(d)
|
The resignation of the Facility Agent and the appointment of any successor Facility Agent will both become effective only when the successor Facility Agent (i) notifies all the Parties that it accepts its appointment and (ii) confirms that it is satisfied that the rights under the Security Documents and the DPP have been assigned or transferred to it. On giving the notification and confirmation, the successor Facility Agent will succeed to the position of the Facility Agent and the term Facility Agent will mean the successor Facility Agent.
|
(e)
|
The retiring Facility Agent must, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as the Facility Agent under the Finance Documents.
|
(f)
|
Upon its resignation becoming effective, this Clause will continue to benefit the retiring Facility Agent in respect of any action taken or not taken by it in connection with the Finance Documents while it was the Facility Agent, and, subject to paragraph (e) above, it will have no further obligations in its capacity as Facility Agent under any Finance Document.
|
(g)
|
The Majority Lenders may, by notice to the Facility Agent, require it to resign under paragraph (b) above.
|
(h)
|
Any successor Facility Agent will be located or have a branch in London, Luxembourg or New York and the Facility Agent or, as the case may be, the Mandated Lead Arranger will consult with the Owner in relation to the identity of such successor Facility Agent.
|
(a)
|
The Facility Agent may treat each Lender as a Lender, entitled to payments under this Agreement and as acting through its Facility Office(s) unless it has received not less than five Business Days prior notice in writing from that Lender to the contrary.
|
(b)
|
The Facility Agent may at any time, and must if requested to do so by the Majority Lenders, convene a meeting of the Lenders.
|
(c)
|
The Facility Agent must keep a record of all the Parties and supply any other Party with a copy of the record on request. The record will include each Lender's Facility Office(s) and contact details for the purposes of this Agreement.
|
(a)
|
The Owner shall pay to the Facility Agent for the account of each Lender a fee calculated at the rate of sixty basis points (60bps) per annum on the undrawn, uncancelled amount of the Maximum Facility Amount at such time.
|
(b)
|
The accrued commitment fee is payable to the Facility Agent quarterly in arrear on the last day of each Term, the first payment to be paid on the last day of the first Term. Accrued commitment fee is also payable to the Facility Agent for a Lender on the date that Lender's Commitment is cancelled or drawn in full.
|
|
The Owner must pay to the Administrative Parties for their respective own account an agency and security trustee fee in the amount and manner agreed in the Fee Letter between the Administrative Parties and the Owner.
|
(a)
|
The Owner shall, as an independent obligation, indemnify each Secured Party against any cost, loss or liability which that Secured Party or any of its Affiliates incurs as a consequence of:
|
|
(i)
|
the Secured Party receiving an amount in respect of the Owner's liability under the Finance Documents; or
|
|
(ii)
|
that liability being converted into a claim, proof, judgment or order,
|
(b)
|
Unless otherwise required by law, the Owner waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.
|
(a)
|
The Owner shall, as an independent obligation, indemnify each Secured Party and any Affiliate against any cost, loss or liability which that Secured Party or any of its Affiliates incurs as a consequence of:
|
|
(i)
|
the occurrence of any Event of Default;
|
|
(ii)
|
any failure by the Owner, the Bareboat Charterer, the Bareboat Charterer Parent or the Operator to pay any amount due under a Finance Document on its due date including any resulting from any distribution or redistribution of any amount among the Lenders under this Agreement;
|
|
(iii)
|
(other than by reason of gross negligence or default by that Finance Party) a Loan not being made after a Request has been delivered for that Loan; or
|
|
(iv)
|
a Loan (or part of a Loan) not being prepaid in accordance with this Agreement.
|
(b)
|
The Owner must indemnify against any cost, loss or liability incurred by any Administrative Party as a result of:
|
|
(i)
|
investigating any event which that Administrative Party reasonably believes is a Default; or
|
|
(ii)
|
acting or relying on any notice which that Administrative Party reasonably believes to be genuine, correct and appropriately authorised,
|
(c)
|
The Owner must promptly pay and discharge, or cause to be paid or discharged, upon the same becoming payable (and shall, if requested by a Secured Party, produce to that Secured Party evidence of the payment and discharge thereof) and indemnify on demand and keep indemnified each Secured Party and its Affiliates on a full indemnity basis against a claim against it by, or a liability to, a third party including, without limitation, in relation to any Taxes (other than any Taxes levied or assessed on net income, profits or gains) or any other Losses which relate to or arise out of or are in any way connected to:
|
|
(i)
|
the condition, testing, delivery, design, leasing, chartering, sub-chartering, sub-sub-chartering, construction, manufacture, purchase, acquisition, bailment, fitting out, sale, importation to or exportation from any country, registration,
|
|
|
ownership, possession, management, control, inspection, surveying, engineering, contracting, installation, manning, provisioning, the provision of bunkers and lubricating oils, dry docking, use, operation, maintenance, repair, service, modification, overhaul, replacement, removal, performance, transportation, flag, navigation, certification, classification, nature, description, acceptance, insurance, refurbishment, conversion, change, alteration or laying-up of the Vessel or any part thereof or otherwise in connection with the Vessel including, without prejudice to the generality of the foregoing, any Losses arising from any pollution or other environmental damage caused by or emanating from the Vessel or caused by the Vessel becoming a wreck or an obstruction to navigation whether or not the Vessel (or any part thereof) is in possession or control of the Owner, the Manager, the Bareboat Charterer or the Operator or any other person and wherever the location;
|
|
(ii)
|
any repossession, return, redelivery, storage, maintenance, protection, attempted sale, sale or other disposition of the Vessel following the termination of the chartering of the Vessel which, if carried out by the Facility Agent, Security Trustee or the Lenders, is carried out in accordance with the terms of the Finance Documents;
|
|
(iii)
|
the complete or partial removal, decommissioning, disposal, making safe, destruction, abandonment or loss of the Vessel including any matter which the Vessel contains or has at any time contained;
|
|
(iv)
|
any damage or loss to the Vessel irrespective of how caused;
|
|
(v)
|
any Environmental Claim or any actual or alleged breach, contravention or violation of any Environmental Laws or Environmental Approvals in any way relating to the Vessel or the activities of any Environmental Affiliates;
|
|
(vi)
|
any design, article or material of the Vessel or relating thereto giving rise to any infringement (or alleged infringement) of any patent or other intellectual property rights; or
|
|
(vii)
|
the occupation, arrest, confiscation, requisition, theft, registration, compulsory acquisition, restraint of the Vessel or prevention thereof, seizure, taking in execution, impounding, forfeiture or detention of the Vessel, or in securing the release of the Vessel (including, without limitation, by the provision of or by procuring a guarantee, bond, cash deposit or other like security).
|
(a)
|
arises from an act or omission on the part of that Secured Party or, as the case may be Affiliate which constitutes fraud, wilful misconduct or gross negligence on the part of such Secured Party or, as the case may be, Affiliate;
|
(b)
|
is caused by any failure on the part of that Secured Party to comply with any of its express obligations under any of the Finance Documents to which that Secured Party is a party (but excluding any such breach or failure that arises as a result of the failure of a party to such Finance Document (other than that Secured Party) duly and punctually to perform its express obligations);
|
(c)
|
is one in respect of which that Secured Party or, as the case may be, Affiliate, is expressly and specifically indemnified and has received and is entitled to retain such indemnity under any other provision of the Finance Documents; or
|
(d)
|
is a cost or expense expressly borne by the Secured Parties under any Finance Document.
|
(a)
|
The Owner must pay to each Lender or, as the case may be, each Swap Bank, its Break Costs in accordance with this Agreement.
|
(b)
|
Break Costs are, subject to paragraphs (c) and (d), the amount (if any) determined by the relevant Lender by which:
|
|
(i)
|
the interest which that Lender would have received for the period from the date of receipt of payment of any part of its share in a Loan or an overdue amount to the last day of the applicable Term for that Loan or overdue amount if the principal or overdue amount received had been paid on the last day of that Term;
|
|
(ii)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or overdue amount received by it on deposit with a leading bank in the London interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Term.
|
(c)
|
In respect of an Eksportfinans Lender, Break Costs means the amount (if any) determined by that Eksportfinans Lender by which:
|
|
(i)
|
the net present value of the interest which the Eksportfinans Lender should have received by applying the Eksportfinans CIRR on the Eksportfinans Loan for the period starting on the date of receipt of the Eksportfinans Loan or its relevant part thereof to (and including) the Final Maturity Date (such amount to be calculated to take into account all of the Repayment Dates in accordance with the Repayment Schedule, as if the Eksportfinans Loan or its relevant part thereof had been repaid on all of the scheduled Instalment Repayment Dates to and including the Final Maturity Date),
|
|
(ii)
|
the net present value of the amount that Eksportfinans Lender would be able to obtain by placing an amount equal to the Eksportfinans Loan or its relevant part thereof at the Prepayment Swap Rate for the period starting on the Business Day following receipt of the Eksportfinans Loan or its relevant part thereof to (and including) the Final Maturity Date and following the Repayment Schedule.
|
(d)
|
In respect of a Swap Bank and a Swap Agreement, Break Costs are the amount (if any) determined by the relevant Swap Bank as being an amount equal to any Swap Termination Payment for that Swap Agreement.
|
(e)
|
Each Lender or, as the case may be, each Swap Bank must supply to the Owner a certificate showing the calculations in reasonable detail confirming the amount of any Break Costs claimed by it under this Clause.
|
(a)
|
the negotiation, preparation, printing and entry into of any Finance Document executed after the date of this Agreement;
|
(b)
|
any amendment, waiver or consent requested by or on behalf of the Owner, or during the Bareboat Charter Period the Bareboat Charterer, or specifically allowed by this Agreement; and
|
(c)
|
the provision by the Technical Adviser of all reports, confirmations and advice provided by it to the Finance Parties during the Pre-Delivery Period and on the Final Completion Date.
|
(a)
|
Except as provided in this Clause 26, no term of the Finance Documents may be amended or waived without the agreement of the Owner and the Facility Agent. The Facility Agent (acting on the instructions of the Majority Lenders, or otherwise in accordance with the relevant Finance Documents) may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.
|
(b)
|
The Facility Agent must promptly notify the other Parties and each Swap Bank of any amendment or waiver effected by it under paragraph (a) above. Any such amendment or waiver is binding on all the Parties.
|
(c)
|
The Owner shall not be concerned or have any responsibility to ensure that the Facility Agent has received any necessary authorisation or consent from the Lenders, and may rely on the agreement of the Facility Agent above.
|
(a)
|
An amendment or waiver which relates to:
|
|
(i)
|
the definition of Majority Lenders in Clause 1.1 (Definitions);
|
|
(ii)
|
an extension of the date of payment of any amount to a Lender under the Finance Documents;
|
|
(iii)
|
a reduction in the amount of any payment of principal, interest, fee or other amount payable to a Lender under the Finance Documents;
|
|
(iv)
|
an increase in, or an extension of, a Commitment or the Total Commitments;
|
|
(v)
|
a release of the Owner other than in accordance with the terms of this Agreement;
|
|
(vi)
|
a release of any Security Document other than in accordance with the terms of this Agreement;
|
|
(vii)
|
a term of a Finance Document which expressly requires the consent of each Lender;
|
|
(viii)
|
the right of a Lender to assign or transfer its rights or obligations under the Finance Documents;
|
|
(ix)
|
the ranking or subordination provided for in the DPP;
|
|
(x)
|
any assignment or transfer by the Owner pursuant to Clause 27.1 (Assignments and transfers by the Owner);
|
|
(xi)
|
Clause 2.4 (Nature of a Finance Party's rights and obligations); or
|
|
(xii)
|
this Clause,
|
(b)
|
An amendment or waiver which relates to a reduction in the Applicable Margin in respect of the Eksportfinans Loans during the Pre-Completion Period or the Post-Completion Eksportfinans Interest Rate may only be made with the consent of all the Eksportfinans Lenders and the Owner.
|
(c)
|
An amendment or waiver which relates to a reduction in LIBOR or the Applicable Margin in respect of the KEXIM Loans may only be made with the consent of all the KEXIM Lenders and the Owner.
|
(d)
|
An amendment or waiver which relates to a reduction in the Applicable Margin in respect of the Commercial Loans may only be made with the consent of all the Commercial Lenders and the Owner.
|
(e)
|
A Fee Letter may be amended or waived with the agreement of each Administrative Party or, as the case may be, Mandated Lead Arranger that is party to that Fee Letter and the Owner.
|
(a)
|
may be exercised as often as necessary;
|
(b)
|
are cumulative and not exclusive of its rights under the general law; and
|
(c)
|
may be waived only in writing and specifically.
|
(a)
|
Subject to Clause 27.5 but without further cost to the Owner, a Lender (the Existing Lender) may at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to any other bank or other financial institution or other entity which is regularly engaged in or established for the purpose of making, issuing, purchasing or investing in loans, securities and other financial assets (the New Lender).
|
(b)
|
Any Eksportfinans Lender may at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to GIEK.
|
(c)
|
The Facility Agent is not obliged to execute a Transfer Certificate until it has completed all know your customer requirements to its satisfaction. The Facility Agent must promptly notify the Existing Lender and the New Lender if there are any such requirements.
|
(d)
|
A transfer of obligations will be effective only if the obligations are novated in accordance with the following provisions of this Clause 27.
|
(e)
|
On the transfer becoming effective in this manner, the relevant Lender will be released from its obligations under this Agreement to the extent that they are transferred to the New Lender.
|
(f)
|
Any reference in the Finance Documents to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under the Finance Documents.
|
(g)
|
The New Lender shall pay a transfer fee of US$5,000 to the Facility Agent immediately following any transfer under and in accordance with the provisions of this Clause 27.
|
(h)
|
Each Lender agrees not to effect any assignment or transfer under this Clause 27 without simultaneously effecting a pro rata assignment or transfer of its equivalent rights and/or obligations under the Sister Loan Agreement.
|
(a)
|
In this Clause 27.3:
|
|
(i)
|
the proposed Transfer Date specified in that Transfer Certificate; and
|
|
(ii)
|
the date on which the Facility Agent executes that Transfer Certificate.
|
(b)
|
A novation is effected if:
|
|
(i)
|
the Existing Lender and the New Lender deliver to the Facility Agent a duly completed Transfer Certificate; and
|
|
(ii)
|
the Facility Agent executes it.
|
(c)
|
On the Transfer Date:
|
|
(i)
|
the New Lender will assume the rights and obligations of the Existing Lender expressed to be the subject of the novation in the Transfer Certificate in substitution for the Lender; and
|
|
(ii)
|
the Existing Lender will be released from those obligations and cease to have those rights.
|
(d)
|
Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to execute any duly completed Transfer Certificate on its behalf.
|
(e)
|
The Facility Agent must, as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Owner a copy of that Transfer Certificate.
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
(i)
|
the financial condition of the Owner or any other Project Party; or
|
|
(ii)
|
the legality, validity, effectiveness, completeness, accuracy, adequacy, enforceability or performance of:
|
|
(A)
|
any Finance Document or any other document;
|
|
(B)
|
any statement or information (whether written or oral) made in or supplied in connection with any Finance Document; or
|
|
(C)
|
any observance by the Owner or Ocean Rig of its obligations under any Finance Document or any other documents,
|
(b)
|
Each New Lender confirms to the Existing Lender that it:
|
|
(i)
|
has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of the Owner and its related entities, or any other Project Party and the nature and extent of any recourse against any Party or any other Project Party or its or their assets) in connection with its participation in this Agreement; and
|
|
(ii)
|
has not relied exclusively on any information supplied to it by the Existing Lender in connection with any Finance Document.
|
(c)
|
Nothing in any Finance Document requires an Existing Lender to:
|
|
(i)
|
accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27; or
|
|
(ii)
|
support any losses incurred by the New Lender by reason of the non-performance by the Owner of its obligations under any Finance Document or otherwise.
|
(a)
|
a Lender assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and
|
(b)
|
as a result of circumstances existing at the date of the assignment, transfer or change occurs, the Owner would be obliged to pay a Tax Payment or an Increased Cost,
|
27.6
|
Changes to the Reference Banks
|
(a)
|
Each Finance Party must keep confidential any information supplied to it by or on behalf of the Owner in connection with the Finance Documents. However, a Finance Party is entitled to disclose information:
|
|
(i)
|
which is publicly available, other than as a result of a breach by that Finance Party of this Clause 28;
|
|
(ii)
|
in connection with any legal or arbitration proceedings;
|
|
(iii)
|
if required to do so under any Applicable Law;
|
|
(iv)
|
to a governmental, banking, taxation or other regulatory authority;
|
|
(v)
|
to its professional advisers;
|
|
(vi)
|
to the extent allowed under paragraph (b) below; or
|
|
(vii)
|
with the agreement of the Owner.
|
(b)
|
A Finance Party may disclose to an Affiliate or any person with whom it may enter, or has entered into, any kind of transfer, participation or other agreement in relation to this Agreement (a participant):
|
|
(i)
|
a copy of any Finance Document; and
|
|
(ii)
|
any information which that Finance Party has acquired under or in connection with any Finance Document.
|
(c)
|
This Clause 28 supersedes any previous confidentiality undertaking given by a Finance Party in connection with this Agreement prior to it becoming a Party.
|
30.
|
PRO RATA SHARING
|
(a)
|
the recovering Finance Party must, within three Business Days, supply details of the recovery to the Facility Agent;
|
(b)
|
the Facility Agent must calculate whether the recovery is in excess of the amount which the recovering Finance Party would have received if the recovery had been received by the Facility Agent under this Agreement; and
|
(c)
|
the recovering Finance Party must pay to the Facility Agent an amount equal to such excess (the redistribution).
|
(a)
|
The Facility Agent must treat a redistribution as if it were a payment by the Owner under this Agreement and distribute it among the Finance Parties, other than the recovering Finance Party, accordingly.
|
(b)
|
When the Facility Agent makes a distribution under paragraph (a) above, the recovering Finance Party will be subrogated to the rights of the Lenders which have shared in that redistribution.
|
(c)
|
If and to the extent that the recovering Finance Party is not able to rely on any rights of subrogation under paragraph (b) above, the Owner will owe the recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged.
|
(d)
|
If:
|
|
(i)
|
a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to the Owner; and
|
|
(ii)
|
the recovering Finance Party has paid a redistribution in relation to that recovery,
|
(a)
|
it would not, after the payment, have a valid claim against the Owner in the amount of the redistribution; or
|
(b)
|
it would be sharing with another Lender any amount which the recovering Finance Party has received or recovered as a result of legal or arbitration proceedings, where:
|
|
(i)
|
the recovering Finance Party notified the Facility Agent of those proceedings; and
|
|
(ii)
|
the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of the Finance Documents; or
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other term of the Finance Documents.
|
33.1
|
In writing
|
(a)
|
Any communication in connection with a Finance Document must be in writing and, unless otherwise stated, may be given:
|
|
(i)
|
in person, by post or fax; or
|
|
(ii)
|
to the extent agreed by the Parties making and receiving the communication, by e-mail or other electronic communication.
|
(b)
|
For the purpose of the Finance Documents, an electronic communication will be treated as being in writing.
|
(c)
|
Unless it is agreed to the contrary, any consent or agreement required under a Finance Document must be given in writing.
|
(a)
|
Except as provided below, the contact details of each Party for all communications in connection with the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party.
|
(b)
|
The contact details of the Owner for this purpose are:
|
Address:
|
c/o Ocean Rig UDW Inc.
|
|
2nd Floor 20 Skopa Street Nicosia
|
||
Cyprus Greece
|
Fax number:
|
+30 2108090275
|
|
Attention:
|
Mr Savvas D Georghiades
|
(c)
|
The contact details of the Facility Agent for this purpose are:
|
Address:
|
2, Boulevard Konrad Adenauer L- 1115 Luxembourg
|
|
Fax number:
|
+352 421 22659/552
|
|
E-mail:
|
banu.ozkutan@db.com / franz-josef.ewerhardy@db.com
|
|
Attention:
|
Banu Ozkutan /Franz-Josef Ewerhardy, International Loans and Agency Services
|
(d)
|
The contact details of the Security Trustee for this purpose are:
|
Address:
|
c/o Deutsche Bank Luxembourg S.A.
|
|
2, Boulevard Konrad Adenauer L- 1115 Luxembourg
|
||
Fax number:
|
+352 421 22659/552
|
|
E-mail:
|
banu.ozkutan@db.com / franz-josef.ewerhardy@db.com
|
|
Attention:
|
Banu Ozkutan / Franz-Josef Ewerhardy, International Loans and Agency Services
|
(e)
|
A Party may change its contact details by giving five Business Days' notice to the Facility Agent or (in the case of the Facility Agent) to the other Parties.
|
(f)
|
Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.
|
(a)
|
Except as provided below, any communication in connection with a Finance Document will be deemed to be given as follows:
|
|
(i)
|
if delivered in person, at the time of delivery;
|
|
(ii)
|
if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope; and
|
|
(iii)
|
if by fax, when received in legible form.
|
(b)
|
A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.
|
(c)
|
A communication to the Facility Agent will only be effective on actual receipt by it.
|
33.5
|
Entire Agreement
|
(a)
|
Any notice given in connection with a Finance Document must be in English.
|
(b)
|
Any other document provided in connection with a Finance Document must be:
|
|
(i)
|
in English; or
|
|
(ii)
|
(unless the Facility Agent otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.
|
(a)
|
The English courts have jurisdiction to settle any dispute in connection with any Finance Document or any non-contractual obligations in connection with them, and the parties irrevocably submit to the jurisdiction of the Courts of England and Wales, including in connection with any dispute relating to any non-contractual obligations arising out of or in connection with any Finance Document.
|
(b)
|
The English courts are the most appropriate and convenient courts to settle any such dispute in connection with any Finance Document. The Owner agrees not to argue to the contrary and waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with any Finance Document.
|
(c)
|
This Clause 36 is for the benefit of the Lenders and the Administrative Parties only. To the extent allowed by law, the Lenders and the Administrative Parties may take:
|
|
(i)
|
proceedings in any other court; and
|
|
(ii)
|
concurrent proceedings in any number of jurisdictions.
|
(d)
|
References in this Clause to a dispute in connection with a Finance Document include any dispute as to the existence, validity or termination of that Finance Document.
|
(a)
|
The Owner irrevocably appoints Ince Process Agents Ltd of International House, 5th Floor,
|
(b)
|
If any person appointed as process agent under this Clause is unable for any reason to act as agent for service of process, the Owner must forthwith (and in any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Facility Agent (acting reasonably). Failing this, the Facility Agent may appoint another process agent for this purpose.
|
(c)
|
The Owner agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
|
(d)
|
This Clause 36 does not affect any other method of service allowed by law.
|
|
The Owner irrevocably and unconditionally:
|
(a)
|
agrees not to claim any immunity from proceedings brought by a Finance Party against it in relation to a Finance Document 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 those proceedings; and
|
(c)
|
waives all rights of immunity in respect of it or its assets.
|
Commitments | |||
Eksportfinans
Commitments (US$)
|
KEXIM
Commitments (US$)
|
Commercial
Commitments (US$)
|
|
Eksportfinans Lenders:
|
|||
Eksportfinans ASA
|
250,000,000
|
||
KEXIM Lenders
|
|||
Export - Import Bank of Korea
|
150,000,000
|
||
Deutsche Bank AG, London Branch
|
12,500,000
|
||
Commercial Lenders:
|
|||
Deutsche Bank AG, London Branch
|
25.0.000
|
||
DVB Bank N.V., Nordic Branch
|
30.0.000
|
||
Helaba Landesbank Hessen- Thuringen Girozentrale, New York Branch
|
27,500,000
|
1.
|
An up to date certificate of goodstanding of the Owner, the Parent and the Parent Shareholder dated no more than two Business Days prior to the first Utilisation Date and a certified copy of the certificate of incorporation and constitutional documents of each.
|
2.
|
A certified copy of a resolution of the board of directors of the Owner, the Parent and the Parent Shareholder:
|
|
(a)
|
approving the terms of, and the transactions contemplated by, each Finance Document to which it is a party and resolving that it executes each such Finance Document then to be executed;
|
|
(b)
|
authorising a specified person or persons to execute each Finance Document on its behalf to which it is a party, then to be executed; and
|
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with each Finance Document then to be executed.
|
3.
|
A specimen of the signature of each person authorised by the resolutions referred to in 2 above.
|
4.
|
An original of each of the following documents, notarised, legalised and/or apostilled as necessary, duly executed by the parties to it:
|
|
(a)
|
each Finance Document (save for those Finance Documents listed in paragraph 8 of Part 2 of this Schedule, paragraph 9 of Part 3 of this Schedule and in paragraphs 2 and 13 of Part 5 of this Schedule) including each Swap Agreement.
|
|
(b)
|
each Sister Finance Document (save for those Sister Finance Documents listed in paragraph 8 of schedule 2, part 2 of the Sister Loan Agreement, paragraph 9 of schedule 2, part 3 of the Sister Loan Agreement and paragraphs 2 and 13 of schedule 2, part 5 of the Sister Loan Agreement);
|
|
(c)
|
the GIEK Guarantee issued in favour of the Eksportfinans Lenders; and
|
|
(d)
|
any mandate or similar document, to be entered into by the Owner with the Account Bank.
|
5.
|
A certified copy of each Related Contract (other than any Drilling Charter, Charterer Parent Guarantee, the Management Agreement and Obligatory Insurances).
|
6.
|
Duly executed originals (or, if originals are not available, fax/pdf copies with originals to follow as soon as possible and in any event within five (5) Business Days) of all notices of assignment required to be served under each Security Document and duly executed originals (or, if originals are not available, fax/pdf copies with originals to follow as soon as possible and in any event within one (1) month) of the acknowledgements thereof (but not including the notices and
|
7.
|
A letter from Ince Process Agents Ltd., agreeing to its appointment as process agent for the Owner under the Finance Documents.
|
8.
|
A legal opinion of Allen & Overy LLP, London, English legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
9.
|
A legal opinion of Woo, Yun, Kang, Jeong Han, Korean legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
10.
|
A legal opinion of Seward & Kissel LLP, Marshall Islands legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
11.
|
A legal opinion of Pologiorgis, Babalis, Panselinos, Troullinos, Mavrou Law Offices, Greek legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
12.
|
Evidence that all fees (including all fees payable on or at the first Utilisation Date under the Fee Letters and legal costs) and reasonable out-of-pocket expenses then due and payable from the Owner under the Finance Documents have been or will be paid by the first Utilisation Date or other drawdown as part of the Incidental Costs Loan.
|
13.
|
Evidence that each Owner Account has been opened in accordance with the Finance Documents.
|
14.
|
Detailed construction, operating and maintenance cost budget, the total Vessel capex plan including the construction schedule, and pro-forma financial projections prepared by the Owner with respect to the project the subject of the Related Contracts in form and substance satisfactory to the Lenders.
|
15.
|
Opinion and report by Marsh that all Construction Insurances are in acceptable form and amount and placed with acceptable underwriters, and such opinion, report and insurance is acceptable to the Facility Agent.
|
16.
|
Confirmation from the Builder that the Owner has paid it in aggregate an amount equal to at least the Initial Equity Contribution and confirmation from the Account Bank or, as the case may be, the Equity Account Bank that the Owner has paid:
|
(a)
|
any Balancing Equity Contribution into the Proceeds Account; and
|
(b)
|
the Equity Collateral to be paid under the terms of this Agreement on or by the Incidental Costs Loan Utilisation Date into the Equity Account.
|
17.
|
Evidence that all Transaction Authorisations required by the Owner to perform its obligations under the Transaction Documents have been obtained or will, at the appropriate time, be obtained.
|
18.
|
Certificate from the Owner confirming that there are no material disputes with the Builder and confirmation from the same that there have been no amendments or variations to the Shipbuilding Contract or the Other Shipbuilding Contract other than amendments disclosed and agreed in writing prior to the date hereof or permitted under the terms of this Agreement.
|
19.
|
Confirmation from the Lenders that they have satisfied their "know your customer" requirements in respect of the relevant parties to the Transaction Documents.
|
20.
|
A copy of any and all invoices issued by the Builder in relation to any Instalments payable by the Owner on or before the Incidental Costs Loan Utilisation Date.
|
21.
|
Original Share Certificates of each of the Owner and the Parent in relation to the Share Charge.
|
22.
|
Executed blank share transfer forms in relation to the Share Charge.
|
23.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
24.
|
A legal opinion of Allen & Overy LLP, English legal advisers to GIEK, addressed to Eksportfinans and concerning certain provisions of the GIEK Guarantee.
|
25.
|
Completion of each Lender's legal, technical, environmental, financial, tax and insurance due diligence with regard to the project, including, among others, review of all Related Contracts and receipt of appropriate internal credit approvals by such Lender.
|
26.
|
Receipt by the Kexim Lenders of the Kexim Guarantee and evidence that any special conditions required by Kexim in connection with the Facility have been met.
|
27.
|
A duly signed syndication letter between GIEK, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch.
|
1.
|
Refresh certificates, update report or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 17 and 18.
|
2.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 14.
|
3.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B) in respect of the Instalment Loan 1.
|
4.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Instalment Loan 1 Utilisation Date.
|
5.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
6.
|
Evidence from the Equity Account Bank that the sum of U.S.$90,000,000 has been placed in the Equity Account.
|
7.
|
A certified copy of the Management Agreement.
|
8.
|
An original of the Management Agreement Assignment, notarised, legalised and/or apostillised as necessary, duly executed by the parties to it together with duly executed originals (or, if originals are not available, fax/pdf copies with originals to follow as soon as possible and in any event within five (5) Business Days) of the notice of assignment to the Manager and a duly executed original (or, if originals are not available, fax/pdf copies with originals to follows as soon as possible and in any event within one (1) month) of the acknowledgement from the Manager, notarised, legalised and/or apostillised, as required.
|
9.
|
A legal opinion of Simonsen Advokatfirma, Norwegian legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
10.
|
A legal opinion of Allen & Overy LLP, London, English legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
1.
|
Refresh certificates or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 17 and 18, in the case of Ocean Rig of continued compliance with the conditions precedent referred to in Schedule 2 to the Amendment and Restatement Agreement at paragraph 3.
|
2.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 14, and certificate from the Classification Society verifying that the construction milestones for the Instalment Loan 2 Utilisation Date specified under Clause 16.29 (Construction Milestones) has been met.
|
3.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the Instalment Loan 2.
|
4.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
5.
|
A certified copy of each of the Petrobras Brasil Charter and the Services Contract each duly executed..
|
6.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Instalment Loan 2 Utilisation Date or, if the Instalment Loan is to be used to refinance the Instalment, the invoice issued by the Builder in relation to the Instalment referred to in Article II paragraph 4(c) of the Shipbuilding Contract together with evidence in writing that the Owner has paid the relevant Instalment to the Builder.
|
7.
|
If the Vessel and Sister Vessel Drilling Charter Date has occurred, evidence from the Equity Account Bank that the required Equity Collateral has been placed in the Equity Account in accordance with Clause 12.2(a)(iii)(C).
|
8.
|
If the Vessel and Sister Vessel Drilling Charter Date has occurred, evidence from the Account Bank that the amount of US$25,000,000 has been paid into the Debt Service Reserve Account in accordance with Clause 12.8(a).
|
1.
|
Refresh certificates or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 17 and 18, in the case of Ocean Rig of continued compliance with the conditions precedent referred to in Schedule 2 to the Amendment and Restatement Agreement at paragraph 3.
|
2.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 14 and a certificate from the Classification Society verifying that the construction milestones for the Instalment Loan 3 Utilisation Date specified under Clause 16.29 (Construction Milestones) has been met.
|
3.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the Instalment Loan 3.
|
4.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
5.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Instalment Loan 3 Utilisation Date or, if the Instalment Loan is to be used to refinance the Instalment, the invoice issued by the Builder in relation to the Instalment referred to in Article II paragraph 4(d) of the Shipbuilding Contract together with evidence in writing that the Owner has paid the relevant Instalment to the Builder.
|
1.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Delivery Loan Utilisation Date.
|
2.
|
A duly executed original of the Delivery General Assignment and the Mortgage.
|
3.
|
A duly executed Power of Attorney in respect of the Mortgage.
|
4.
|
A legal opinion from Allen & Overy LLP, London, English legal advisers to the Lenders, in respect of the Delivery General Assignment.
|
5.
|
A legal opinion from Seward & Kissel, Marshall Islands legal adviser to the Lenders, in respect of the Delivery General Assignment and the Mortgage.
|
6.
|
A legal opinion of Brazilian counsel approved by the Facility Agent in relation to Petrobras Brasil's due execution of the Petrobras Brasil Charter and Services Contract.
|
7.
|
A transcript of the Marshall Islands Ship Registry showing that:
|
|
(a)
|
the Mortgage has been duly recorded in the Marshall Islands and constitutes a first priority security interest over the Vessel and that all taxes and fees payable to the Marshall Islands Registrar of Shipping in respect of the Vessel have been paid in full; and
|
|
(b)
|
the Vessel is provisionally registered in the name of the Owner as a fully completed Marshall Islands ship free of all Security Interests other than Permitted Liens.
|
8.
|
Copies of such other documents and/or legal opinions which, based on legal advice received from the relevant advisers referred to in this Agreement and which are reasonably required to evidence the legality, validity and enforceability of the obligations of the parties to any Finance Document being delivered on the Delivery Loan Utilisation Date.
|
9.
|
A certified copy of:
|
|
(a)
|
a final classification certificate from the Classification Society in respect of the Vessel showing the Vessel to be in class without recommendation, condition or qualification (other than any immaterial recommendations, conditions or qualifications that are capable of rectification within 12 months or such shorter period as is required by the Classification Society) or, in the event that this is not available, a faxed copy with a certified copy to follow as soon as practicable after the Delivery Date;
|
|
(b)
|
a valid Interim Safety Management Certificate;
|
|
(c)
|
a valid Document of Compliance; and
|
|
(d)
|
a valid International Ship Security Certificate.
|
10.
|
Confirmation acceptable to the Facility Agent (such acceptance not to be unreasonably withheld or delayed) that the Owner will accept the Vessel pursuant to the terms of the Shipbuilding Contract and execute a protocol of delivery and acceptance.
|
11.
|
A certified copy of the commercial invoice in respect of the Vessel.
|
12.
|
A certified copy of the Builder's certificate in respect of the Vessel.
|
13.
|
Duly executed and, where necessary, notarised, legalised and/or apostilled notices of assignment of the Obligatory Insurances in respect of the Vessel duly executed by the Owner substantially in the form provided for in the Delivery General Assignment and all confirmations and acknowledgements required in accordance with the terms of the Delivery General Assignment.
|
14.
|
Confirmation from the Facility Agent of its satisfaction with a final insurance report prepared by Marsh, or such other insurance adviser appointed by the Facility Agent and fax confirmations from each broker (if applicable), insurer and club concerned with the Obligatory Insurances that the insurances meet the requirements set out in Clause 17.1 including the insurances referred to in Clause 17.1(e), will be effective from the actual delivery of the Vessel and are consistent with the requirements of the Drilling Charter.
|
15.
|
Duly executed letters of undertaking substantially in the form provided in the Delivery General Assignment from, inter alios, the approved brokers (if applicable), insurer and club concerned with the Obligatory Insurances.
|
16.
|
The Annual Budget of the Owner in agreed form and approved by the Lenders, for the year from the date of payment of the Delivery Loan falls.
|
17.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution required under Clause 12.2(a)(i); and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the Delivery Loan.
|
18.
|
A copy of any and all invoices issued by the Builder in relation to any Instalments payable by the Owner on or before the Delivery Loan Utilisation Date.
|
19.
|
Refresh certificates or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 19, 20 and 22.
|
20.
|
Evidence that the Required DSRA Balance has been or will immediately after the drawing of the Delivery Loan be credited to the balance of the Debt Service Reserve Account.
|
21.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 22, and a draft technical memorandum issued by the Technical Adviser covering the relevant Workscope, to be achieved by the Delivery Loan Utilisation Date and confirming that the construction milestones specified under Clause 16.29 (Construction Milestones) has been met.
|
22.
|
Evidence that the Owner's equity in the Vessel is not less than 30% of the total Vessel Cost.
|
23.
|
Evidence that the project the subject of the Related Contracts, has sufficient ongoing maintenance opex and working capital requirements, and evidence in the form of reserves, if necessary, that the Owner will be able to meet these ongoing requirements.
|
24.
|
Confirmation from the Owner and the Facility Agent (acting on behalf of each of the Lenders) of their satisfactory due diligence on the Charterer's and the Lenders' withholding tax and the Owner's withholding tax and corporation tax exposure, if any.
|
25.
|
Provision of a tax opinion from the Owner's tax advisers (which may be disclosed to the Finance Parties) in respect of potential withholding and income tax payable under the Transaction Documents in form and substance satisfactory to each of the Finance Parties.
|
26.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
1.
|
A copy of any and all invoices in respect of approved Incidental Vessel Costs payable by the Owner on or immediately following the proposed Utilisation Date for the requested Incidental Vessel Costs Loan.
|
2.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the relevant Incidental Vessel Costs Loan.
|
To:
|
Deutsche Bank Luxembourg S.A. as Facility Agent
|
From:
|
Drillship Skopelos Owners Inc.
|
1.
|
We refer to the Credit Agreement. This is a Request. Terms defined in the Credit Agreement shall have the same meaning when used in this Request.
|
2.
|
We wish to borrow a Loan from you as follows:
|
|
(a)
|
Utilisation Date:
|
[ ]
|
|
(b)
|
Amount:
|
US$[ ]
|
|
(c)
|
Details of item:
|
US$[ ]
|
|
(d)
|
Details of item:
|
US$[ ]]
|
|
(e)
|
Total drawdown:
|
US$[ ]
|
3.
|
Our payment instructions are:
|
|
(a)
|
amount of Loan in respect of Instalment payable under the Shipbuilding Contract to be payable to the Builder's account [set out account details];
|
|
(b)
|
[Required DSRA Balance to be credited to the Debt Service Reserve Account;
|
|
(c)
|
Incidental Loan Costs to be credited to the Facility Agent's nominated account; and
|
|
(d)
|
Incidental Vessel Costs to be credited to [the Owner's: current account for forward payment to] the relevant payee account indicated in invoice
|
4.
|
We confirm that each condition precedent under the Credit Agreement which must be satisfied on the date of this Request is so satisfied and that the Repeating Representation are true and correct with reference to the facts and circumstances now subsisting.
|
5.
|
This Request is irrevocable.
|
6.
|
If applicable, a copy of:
|
|
(a)
|
[the relevant invoice from the Builder the final stage certificate signed by the Builder and us; and
|
|
(b)
|
the relevant invoices in respect of the Incidental Vessel Costs,
|
To:
|
DRILLSHIP SKOPELOS OWNERS INC.
|
|
From: [THE EXISTING LENDER] and [THE NEW LENDER]
|
1.
|
We [ ] (the Existing Lender) and [ ] (the New Lender) agree to the Existing Lender and the New Lender novating all the Existing Lender's rights and obligations referred to in the Schedule in accordance with Clause 27.3 (Procedure for transfer by way of novations) of the Credit Agreement.
|
2.
|
The specified date for the purposes of Clause 27.3(a) of the Credit Agreement is [date of novation],
|
3.
|
The Facility Office and address for notices of the New Lender for the purposes of Clause 33.2 (Contact details) of the Credit Agreement are set out in the Schedule attached to this Certificate.
|
4.
|
This Novation Certificate is governed by English law.
|
(a)
|
All of the rights and obligations of the Existing Lender in respect of the Facility - principal amount US$[ ].
|
(b)
|
The principal amount of US$[ ] in respect of each of the Loans and all the rights and obligations attached to the same - total principal amount US$[ ].
|
[Existing Lender]
|
[New Lender]
|
By:
|
By:
|
Date:
|
Date:
|
The Transfer Date is confirmed by the Facility Agent as [ ].
|
|
[ ]
|
|
By:
|
Date
|
Repayment
|
|
1
|
31 May 2012
|
US$27,500,000
|
2
|
30 November 2012
|
US$27,500,000
|
3
|
31 May 2013
|
US$27,500,000
|
4
|
30 November 2013
|
US$27,500,000
|
5
|
31 May 2014
|
US$27,500,000
|
6
|
30 November 2014
|
US$27,500,000
|
7
|
31 May 2015
|
US$27,500,000
|
8
|
30 November 2015
|
US$27,500,000
|
9
|
31 May 2016
|
US$27,500,000
|
10
|
30 November 2016
|
US$27,500,000
|
11
|
31 May 2017
|
US$27,500,000
|
12
|
30 November 2017
|
US$27,500,000
|
13
|
31 May 2018
|
US$27,500,000
|
14
|
30 November 2018
|
US$27,500,000
|
15
|
31 May 2019
|
US$27,500,000
|
16
|
30 November 2019
|
US$27,500,000
|
17
|
31 May 2020
|
US$27,500,000
|
18
|
30 November 2020
|
US$27,500,000
|
From:
|
Drillship Skopelos Owners Inc.
|
1.
|
Terms defined in the Credit Agreement have the same meaning in this Certificate.
|
2.
|
We hereby certify that [no Default or Mandatory Termination Event has occurred and is continuing or is outstanding] [a Default/Mandatory Prepayment Event under Clause [ ] of [specify document] is outstanding] and the following steps are being taken to remedy it [ ].
|
3.
|
With respect to the Calculation Period ending on [insert Repayment Date] the Debt Service Ratio was [·] calculated on the basis of the figures in the table below.
|
1.
|
Costs and expenses under the Management Agreement incurred in the Pre-Completion Period in accordance with the Approved Budget attached as Appendix 1 up to US$34,100,000.
|
2.
|
Initial Debt Service Reserve Contribution up to US$25,000,000.
|
(a)
|
The Mandatory Cost is to compensate a Lender for the cost of compliance with:
|
|
(i)
|
the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces any of its functions); or
|
|
(ii)
|
the requirements of the European Central Bank.
|
(b)
|
The Mandatory Cost is expressed as a percentage rate per annum.
|
(c)
|
The Mandatory Cost is the weighted average (weighted in proportion to the percentage share of each Lender in the relevant Loan) of the rates for the Lenders calculated by the Facility Agent in accordance with this Schedule on the first day of a Term (or as soon as possible after then).
|
(d)
|
The Facility Agent must distribute each amount of Mandatory Cost among the Lenders on the basis of the rate for each Lender.
|
(e)
|
Any determination by the Facility Agent pursuant to this Schedule will be, in the absence of manifest error, conclusive and binding on all the Parties.
|
(a)
|
The relevant rate for a Lender lending from a Facility Office in the U.K. is calculated in accordance with the following formula:
|
(b)
|
For the purposes of this paragraph 2:
|
|
(i)
|
fees rules means the then current rules on periodic fees in the Supervision Manual of the FSA Handbook or any other law or regulation as may then be in force for the payment of fees for the acceptance of deposits;
|
|
(ii)
|
fee tariffs means the fee tariffs specified in the fees rules under fee-block Category Al (Deposit acceptors) (ignoring any minimum fee or zero rated fee required pursuant to the fees rules but applying any applicable discount rate); and
|
|
(iii)
|
tariff base has the meaning given to it in, and will be calculated in accordance with, the fees rules.
|
(c)
|
Each rate calculated in accordance with the formula is, if necessary, rounded upward to four decimal places.
|
(d)
|
If requested by the Facility Agent, each Reference Bank must, as soon as practicable after publication by the Financial Services Authority, supply to the Facility Agent the rate of charge payable by that Reference Bank to the Financial Services Authority under the fees rules for that financial year of the Financial Services Authority (calculated by that Reference Bank as being the average of the fee tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1 million of the tariff base of that Reference Bank.
|
(e)
|
Each Lender must supply to the Facility Agent the information required by it to make a calculation of the rate for that Lender. In particular, each Lender must supply the following information on or prior to the date on which it becomes a Lender:
|
|
(i)
|
the jurisdiction of its Facility Office; and
|
|
(ii)
|
any other information that the Facility Agent reasonably requires for that purpose.
|
(f)
|
The rates of charge of each Reference Bank for the purpose of E above are determined by the Facility Agent based upon the information supplied to it under paragraphs (d) and (e) above. Unless a Lender notifies the Facility Agent to the contrary, the Facility Agent may assume that the Lender's obligations in respect of cash ratio deposits and special deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the U.K.
|
(g)
|
The Facility Agent has no liability to any Party if its calculation over or under compensates any Lender. The Facility Agent is entitled to assume that the information provided by any Lender or Reference Bank under this Schedule is true and correct in all respects.
|
(a)
|
The relevant rate for a Lender lending from a Facility Office in a Participating Member State is the percentage rate per annum notified by that Lender to the Facility Agent. This percentage rate per annum must be certified by that Lender in its notice to the Facility Agent as its reasonable determination of the cost (expressed as a percentage of that Lender's share in all Loans made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of Loans made from that Facility Office.
|
(b)
|
If a Lender fails to specify a rate under paragraph (a) above, the Facility Agent will assume that the Lender has not incurred any such cost.
|
(a)
|
The Facility Agent may, after consultation with the Owner and the Lenders, determine and notify all the Parties of any amendment to this Schedule which is required to reflect:
|
|
(i)
|
any change in law or regulation; or
|
|
(ii)
|
any requirement imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any successor authority).
|
(b)
|
If the Facility Agent, after consultation with the Owner, determines that the Mandatory Cost for a Lender lending from a Facility Office in the U.K. can be calculated by reference to a screen, the Facility Agent may notify all the Parties of any amendment to this Agreement which is required to reflect this.
|
|
APPENDIX 4
|
|
APPROVED BUDGET
|
Clause
|
Page
|
|
1.
|
Interpretation
|
1
|
2.
|
Facilities
|
34
|
3.
|
Conditions Precedent
|
35
|
4.
|
Utilisation
|
37
|
5.
|
Repayment
|
41
|
6.
|
Prepayment and Cancellation
|
41
|
7.
|
Interest
|
46
|
8.
|
Terms
|
47
|
9.
|
Market Disruption
|
48
|
10.
|
Taxes
|
49
|
11.
|
Increased Costs
|
51
|
12.
|
Accounts
|
53
|
13.
|
Payments
|
60
|
14.
|
Representations and Warranties
|
62
|
15.
|
Information Covenants
|
70
|
16.
|
General Covenants
|
75
|
17.
|
Insurances
|
93
|
18.
|
Default
|
98
|
19.
|
Security
|
103
|
20.
|
The Administrative Parties
|
104
|
21.
|
Evidence and Calculations
|
109
|
22.
|
Fees
|
109
|
23.
|
Indemnities and Break Costs
|
110
|
24.
|
Expenses
|
113
|
25.
|
Waiver of Consequential Damages
|
114
|
26.
|
Amendments and Waivers
|
114
|
27.
|
Changes to the Parties
|
116
|
28.
|
Disclosure of Information
|
118
|
29.
|
Set-Off
|
119
|
30.
|
Pro Rata Sharing
|
119
|
31.
|
Severability
|
120
|
32.
|
Counterparts
|
120
|
33.
|
Notices
|
121
|
34.
|
Language
|
122
|
35.
|
Governing Law
|
123
|
36.
|
Enforcement
|
123
|
Schedule
|
Page
|
|
1.
|
Original Lenders
|
125
|
2.
|
Conditions Precedent
|
126
|
Part 1 Incidental Costs Loan
|
126
|
|
Part 2 Instalment Loan 1
|
129
|
|
Part 3 Instalment Loan 2
|
130
|
|
Part 4 Instalment Loan 3
|
131
|
|
Part 5 Delivery Loan
|
132
|
|
Part 6 Incidental Vessel Costs Loan
|
135
|
|
3.
|
Form of Request
|
136
|
4.
|
Form of Transfer Certificate
|
138
|
5.
|
Loan Repayment Schedule
|
140
|
6.
|
Calculation Certificate
|
141
|
7.
|
Incidental Vessel Costs
|
142
|
8.
|
Calculation of the Mandatory Cost
|
143
|
1.
|
Form of Charter Assignment
|
146
|
2.
|
Approved Budget
|
147
|
3.
|
Form of Bareboat Charterer Petrobras Charter Assignment
|
148
|
4.
|
Form of Management Agreement Assignment Side Letter
|
149
|
5.
|
Form of Management Agreement Assignment Agreement
|
150
|
6.
|
Form of Petrobras Charter Novation Agreement
|
151
|
Signatories
|
152
|
(1)
|
DRILLSHIP KITHIRA OWNERS INC. a corporation incorporated in the Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as borrower (the Owner);
|
(2)
|
DEUTSCHE BANK AG, LONDON BRANCH as bookrunner and mandated lead arranger and bookrunner (in this capacity the Bookrunner and Mandated Lead Arranger);
|
(3)
|
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Lenders) as original lenders (the Original Lenders);
|
(4)
|
DEUTSCHE BANK AG, LONDON BRANCH as swap bank (in this capacity a Swap Bank);
|
(5)
|
DEUTSCHE BANK LUXEMBOURG S.A. as facility agent (in this capacity the Facility Agent); and
|
(6)
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT as security trustee (in this capacity the Security Trustee).
|
(a)
|
during the Pre-Completion Period, the Contract Price, the Incidental Costs, any other costs approved by the Lenders and any other costs and expenses incurred or to be incurred in relation to the construction of the Vessel and containing sufficient information and details to enable the Equity Collateral to be calculated; and
|
(b)
|
during the Post-Completion Period:
|
(i)
|
the anticipated Earnings;
|
(ii)
|
the anticipated Operating Expenses;
|
(iii)
|
the anticipated CAPEX Expenses; and
|
(iv)
|
the anticipated Bareboat Charterer Earnings during the Bareboat Charter Period,
|
(a)
|
during the Pre-Completion Period, the Pre-Completion Margin; or
|
(b)
|
during the Post-Completion Period, the Post-Completion Margin, as the case may be.
|
|
(a)
|
for the Incidental Costs Loan, the Incidental Costs Loan Availability Period;
|
|
(b)
|
for the Instalment Loan 1, the Instalment Loan 1 Availability Period;
|
|
(c)
|
for the Instalment Loan 2, the Instalment Loan 2 Availability Period;
|
|
(d)
|
for the Instalment Loan 3, the Instalment Loan 3 Availability Period;
|
|
(e)
|
for the Delivery Loan, the period from and including the Utilisation Date for the immediately preceding Loan (if any) to and including the Petrobras Acceptance Longstop Date;
|
|
(f)
|
for the Undrawn Amount Loan, the period from and including the date falling ten (10) Business Days after the Final Completion Date to and including the date falling thirty (30) Business Days after the Final Completion Date; and
|
|
(g)
|
for an Incidental Vessel Costs Loan, the period from and including the date of this Agreement to and including the Final Completion Date.
|
|
(a)
|
the aggregate of all costs payable or reasonably expected to be payable by the Owner to the Builder under the Shipbuilding Contract; less
|
|
(b)
|
the aggregate of the Expected Contract Price and any Balancing Equity Contributions already paid by the Owner into the Proceeds Account in accordance with Clause 12.2 (Proceeds Account).
|
|
(a)
|
freights, passage and hire moneys (howsoever earned), including, for the avoidance of doubt, charterhire, charterhire performance bonuses and any mobilisation fees payable under the Petrobras Charter;
|
|
(b)
|
remuneration for salvage and towage services;
|
|
(c)
|
demurrage and detention moneys;
|
|
(d)
|
all moneys and claims in respect of the requisition for hire of the Vessel;
|
|
(e)
|
payments received in respect of off-hire insurance; and
|
|
(f)
|
any damages for breach or payments for termination of the Petrobras Charter.
|
|
(a)
|
any material breach by the Bareboat Charterer of the terms of the Bareboat Charter, which material breach is not cured by the date which falls 20 days after the date on which the Facility Agent gives written notice to the Bareboat Charterer of the breach and such breach is not remedied, or otherwise compensated for, in each case, to the satisfaction of the Majority Lenders within such period or if the matter has been referred to arbitration within that 20 day period, upon the earlier of a settlement being reached in respect of such arbitration and 15 days after the receipt of the final arbitration award; or
|
|
(b)
|
the termination of the Bareboat Charter by the Owner or the Bareboat Charterer for any reason whatsoever.
|
|
(a)
|
the period from (and including) the Final Completion Date of the Vessel to (and excluding) the first Repayment Date; and
|
|
(b)
|
each subsequent period from (and including) a Repayment Date to (and excluding) the next Repayment Date or, as the case may be, the Final Maturity Date.
|
|
(a)
|
its rights under that Drilling Charter; and
|
|
(b)
|
its rights under any applicable Charterer Parent Guarantee.
|
|
(a)
|
any material breach by the Charterer of the terms of a Drilling Charter or, as applicable, by the Charterer Parent of the terms of a Charter Parent Guarantee which material breach is not cured by the date which falls 20 days after the date on which the Facility Agent gives written notice to the Owner of the breach and such breach is not remedied, or otherwise compensated for, in each case, to the satisfaction of the Majority Lenders within such period
|
|
(b)
|
the termination of a Drilling Charter by the Owner or the Charterer; or
|
|
(c)
|
the termination of the Petrobras Charter by either Ocean Rig prior to, or the Bareboat Charterer during, the Bareboat Charter Period, or at any time by Petrobras Tanzania for any reason.
|
|
(a)
|
for an Original Lender, the amount set opposite its name in Schedule 1 (Original Lenders) under the heading "Commitments" and the amount of any other Commitment it acquires; and
|
|
(b)
|
for any other Lender, the amount of any other Commitment it acquires, to the extent not cancelled, transferred or reduced under this Agreement.
|
|
(a)
|
the Expected Contract Price; and
|
|
(b)
|
the total amount actually paid to the Builder by or on behalf of the Owner under the Shipbuilding Contract, as adjusted in accordance with the provisions of the Shipbuilding Contract.
|
|
(a)
|
in the case of an actual total loss, on the actual date and at the time the Vessel was lost or, if such date is not known, on the date on which the Vessel was last reported;
|
|
(b)
|
in the case of a constructive total loss, upon the date and at the time notice of abandonment is given to the Insurers for the time being (provided a claim for total loss is admitted by such Insurers) or, if such Insurers do not forthwith admit such a claim, at the date and at the time at which either a total loss is subsequently admitted by the Insurers or a total loss is subsequently adjudged by a competent court of law or arbitration tribunal to have occurred;
|
|
(c)
|
in the case of a compromised, agreed or arranged total loss, on the date upon which a binding agreement as to such compromised, agreed or arranged total loss has been entered into by the Insurers;
|
|
(d)
|
in the case of requisition for title or other compulsory acquisition, on the date upon which the relevant requisition for title or other compulsory acquisition occurs; or
|
|
(e)
|
in the case of capture, seizure, arrest, detention, or confiscation of the Vessel by any government or by persons acting or purporting to act on behalf of any government, government authority or any other person or entity which deprives the Owner of the Vessel or, as the case may be, the Charterer (and in the case of the Petrobras Charter Ocean Rig prior to, and the Bareboat Charterer during, the Bareboat Charter Period) of the use of the Vessel for more than 60 days, upon the expiry of the period of 60 days after the date upon which the relevant capture, seizure, arrest, detention or confiscation occurred.
|
|
(a)
|
Financing Costs accruing; and
|
|
(b)
|
Financing Principal payable (other than as a result of a prepayment obligation), in that period less any amounts accruing for payment to the Owner in that period under Swap Agreement.
|
|
(a)
|
an Event of Default; or
|
|
(b)
|
an event or circumstance which would be (with the expiry of a grace period, the giving of notice or the making of any determination under the Finance Documents or any combination of them) an Event of Default.
|
|
(a)
|
freights, passage and hire moneys (howsoever earned), including, for the avoidance of doubt, charterhire and charterhire performance bonuses payable under any Drilling Charter, the OCR Time Charter or the Bareboat Charter;
|
|
(b)
|
Liquidated Damages Payments;
|
|
(c)
|
remuneration for salvage and towage services;
|
|
(d)
|
demurrage and detention moneys;
|
|
(e)
|
all moneys and claims in respect of the requisition for hire of the Vessel;
|
|
(f)
|
payments received in respect of off-hire insurance; and
|
|
(g)
|
damages for breach or payments for termination of a Drilling Charter or any other contract for the employment of the Vessel.
|
|
(a)
|
any land including, without limitation, surface land and sub-surface strata, sea bed or river bed under any water (as referred to below) and any natural or man-made structures;
|
|
(b)
|
water including, without limitation, coastal and inland waters, surface waters, ground waters and water in drains and sewers;
|
|
(c)
|
air including, without limitation, air within buildings and other natural or man-made structures above or below ground; and
|
|
(d)
|
flora, fauna and ecological systems.
|
|
(a)
|
pollution or contamination of the Environment, including any remediation of any pollution or contamination or the restoration or repair of any damage to the Environment;
|
|
(b)
|
the protection of the Environment and human health or safety or any living organisms which inhabit the Environment or any ecological system;
|
|
(c)
|
the generation, manufacture, processing, distribution, use (including abuse), treatment, storage, deposit, disposal, transport or handling of Hazardous Materials;
|
|
(d)
|
the Release or other form of transmission into the Environment of noise, vibration, dust, fumes, gas, odours, smoke, steam, effluvia, heat, light, radiation (of any kind), infection, electricity or any Hazardous Material and any matter or thing capable of constituting a nuisance or an actionable tort or breach of statutory duty of any kind in respect of such matters; and
|
|
(e)
|
the provision and maintenance of bonds, guarantees or other forms of financial assurance required by any Governmental Entity in connection with activities that could have an adverse effect on the Environment.
|
|
(a)
|
the proportion of claims for general average, salvage and salvage charges which are not recoverable as a result of the value at which the Vessel is assessed for the purpose of such claims exceeding her hull and machinery insured value; and
|
|
(b)
|
collision liabilities not recoverable in full under the hull and machinery insurance by reason of those liabilities exceeding such proportion of the insured value of the Vessel as is covered by the hull and machinery insurance.
|
|
(a)
|
the date of actual delivery of the Vessel to the Charterer under the Drilling Charter and unconditional acceptance by the Charterer under the terms thereof; and
|
|
(b)
|
the date of confirmation to the Facility Agent from the Technical Adviser that the Vessel's design and performance fulfils the technical specifications required under the Shipbuilding Contract and the Drilling Charter.
|
|
(a)
|
this Agreement;
|
|
(b)
|
the Amendment and Restatement Agreement;
|
|
(c)
|
the Amendment and Restatement Agreement No.2;
|
|
(d)
|
the Deed of Release and Amendment;
|
|
(e)
|
each Security Document;
|
|
(f)
|
the DPP;
|
|
(g)
|
the DPP Deed of Accession;
|
|
(h)
|
DPP Deed of Accession Amendment and Restatement;
|
|
(i)
|
the GIEK Security Trustee Letter;
|
|
(j)
|
each Swap Agreement;
|
|
(k)
|
each Fee Letter;
|
|
(l)
|
each Transfer Certificate;
|
|
(m)
|
each Account Bank Mandate; and
|
|
(n)
|
any other document designated as such by the Facility Agent and the Owner.
|
|
(a)
|
moneys borrowed;
|
|
(b)
|
any amount raised by acceptance under any acceptance credit agreement (including any dematerialised equivalent);
|
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or other similar instrument;
|
|
(d)
|
any redeemable preference share;
|
|
(e)
|
the amount of any liability in respect of a lease or hire purchase contract which would, in accordance with IFRS, be treated as a finance or capital lease;
|
|
(f)
|
receivables sold or discounted (otherwise than on a non-recourse basis);
|
|
(g)
|
the acquisition cost of any asset or service to the extent payable after its acquisition or possession by the party liable where the advance or deferred payment is arranged primarily as a method of raising finance or of financing the acquisition of that asset or service;
|
|
(h)
|
any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and, except for non-payment of an amount, the then mark to market value of the derivative transaction will be used to calculate its amount);
|
|
(i)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing other than trade credits incurred in the ordinary course of business with credit terms of no longer than 90 days;
|
|
(j)
|
any counter-indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; or
|
|
(k)
|
the amount of any liability in respect of any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in the above paragraphs.
|
|
(a)
|
interest, fees and any other costs or expenses payable under the Finance Documents;
|
|
(b)
|
any Swap Costs; and
|
|
(c)
|
any Tax in respect of any of the above.
|
|
(a)
|
any natural government, political subdivision thereof, or local jurisdiction therein; and
|
|
(b)
|
any instrumentality, board, commission, court or agency thereof, however constituted.
|
|
(a)
|
each of the fees referred to in Clause 22 (Fees) and payable under the terms of the Fee Letters during the Pre-Completion Period;
|
|
(b)
|
any and all costs and expenses which are payable by the Owner to the Secured Parties pursuant to Clause 24.1 (Initial costs) within a period of three (3) months from the date of this Agreement; and
|
|
(c)
|
interest in the Pre-Completion Period calculated and payable in accordance with Clause 7.1(a).
|
|
(a)
|
reasonable and properly incurred costs paid by the Owner in connection with the Vessel in excess of the Contract Price, in respect of those items detailed in Schedule 7 (Incidental Vessel Costs), for which supporting invoices or receipts have been provided to the Security Trustee;
|
|
(b)
|
the Initial Debt Service Reserve Contribution; and
|
|
(c)
|
any interest accrued and payable to the Eksportfinans Lenders in respect of the Eksportfinans Loans drawn under this Facility.
|
|
(a)
|
an additional or increased cost;
|
|
(b)
|
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital; or
|
|
(c)
|
a reduction of an amount due and payable under any Finance Document,
|
|
(a)
|
an Original Lender; or
|
|
(b)
|
any person which becomes a Party in accordance with Clause 27.2 (Assignments and transfers by Lenders),
|
|
(a)
|
the applicable Screen Rate; or
|
|
(b)
|
if no Screen Rate is available for the relevant currency or for any Term of that Loan or overdue amount, the arithmetic mean (rounded upward to four decimal places) of the rates, as supplied to the Security Trustee at its request, quoted by the Reference Banks to leading banks in the London interbank market, as of 11.00 a.m. on the second London Business Day before the start of the Term for the offering of deposits in Dollars for a period comparable to that Term.
|
|
(a)
|
whose share in the outstanding Loans and whose undrawn Commitments then aggregate not less than 80% of the aggregate of all the outstanding Loans and the undrawn Commitments of all the Lenders and who include at least (but without limitation) one (1) Commercial Lender whose share in the outstanding Loans and whose undrawn Commitments in connection with the Loans then aggregate more than 1 % of the aggregate of all the outstanding Loans and the undrawn Commitments of the Lenders; or
|
|
(b)
|
if there is no Loan then outstanding, whose undrawn Commitments then aggregate not less than 80% of the Total Commitments and who include at least (but without limitation) one
|
|
(c)
|
if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated not less than 80% of the Total Commitments immediately before the reduction and who include at least (but without limitation) one (1) Commercial Lender whose undrawn Commitments in connection with the Loans aggregated more than 1 % of the aggregate of all the outstanding Loans and the undrawn Commitments of the Lenders,
|
|
(a)
|
the net present value of the expected Net Cash Flow to be derived from each existing Drilling Charter as calculated by the Facility Agent in its sole discretion on the basis of a discount rate of 6 per cent. per annum and information then available to it and on the basis that:
|
|
(i)
|
during the first year of each Drilling Charter the Operating Expenses shall be US$150,000 per day and utilization rate of 95 per cent. for the Vessel; and
|
|
(ii)
|
thereafter the Operating Expenses and the utilization rate of the Vessel shall be the Operating Expenses actually incurred and utilization rate actually achieved during the previous twelve month period of the relevant Drilling Charter; and
|
|
(b)
|
the forecasted fair market value of the Vessel derived from a valuation of the Vessel obtained from one Approved Broker with or without physical inspection of the Vessel (as the Security Trustee may reasonably require) on the basis of a sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing buyer and a willing seller, on an "as is, where is" basis, as at the latest expiry date of the then existing Drilling Charters.
|
|
(a)
|
the ability of the Owner, the Bareboat Charterer during the Bareboat Charter Period or Ocean Rig to perform its obligations under the Transaction Documents;
|
|
(b)
|
the validity or enforceability of, or the effectiveness or ranking of any Security Interest granted or purported to be granted pursuant to any Finance Document; or
|
|
(c)
|
any right or remedy of a Finance Party in respect of a Finance Document.
|
|
(a)
|
Gross Revenues received; minus
|
|
(b)
|
Operating Expenses and CAPEX Expenses in each case of the Owner payable.
|
|
(a)
|
prior to, and following the expiry of, the Bareboat Charter Period, expenses incurred by the Owner in connection with the transportation, operation, employment, maintenance, repair, running and insurance of the Vessel, including maintaining the ownership and legal fees, rentals, wages or fees which the Owner may be required to pay pursuant to the Management Agreement, the cost of maintaining Obligatory Insurances and other insurances maintained for the Vessel and payment of Tax properly payable by the Owner; and
|
|
(b)
|
during the Bareboat Charter Period, expenses incurred by the Bareboat Charterer in connection with the transportation, operation, employment, maintenance, repair, running and insurance of the Vessel, including maintaining the ownership and legal fees, rentals, wages or fees which the Bareboat Charterer may be required to pay pursuant to the Management Agreement, the cost of maintaining Obligatory Insurances and other insurances maintained for the Vessel and payment of Tax properly payable by the Bareboat Charterer.
|
|
(a)
|
Security Interests created by the Security Documents;
|
|
(b)
|
liens for unpaid crew's wages including wages of the master and stevedores employed by the Vessel, outstanding in the ordinary course of business for not more than one month after the due date for payment;
|
|
(c)
|
any Security Interest constituted by or securing any netting or set-off arrangement entered into in the normal course of the Owner's banking arrangements in respect of any bank accounts opened by it and which have not been secured in favour of the Finance Parties pursuant to the Security Documents;
|
|
(d)
|
liens for salvage;
|
|
(e)
|
liens for classification or scheduled dry-docking or for necessary repairs to the Vessel whose aggregate cost does not exceed US$10,000,000 at any one time in respect of the Vessel;
|
|
(f)
|
liens for collision;
|
|
(g)
|
liens for master's disbursements incurred in the ordinary course of business;
|
|
(h)
|
statutory and common law liens of carriers, warehousemen, mechanics, suppliers, materials men, repairers or other similar liens, including maritime liens, in each case arising in the ordinary course of business, due and outstanding for not more than one month whose aggregate value does not exceed US$10,000,000; and
|
|
(i)
|
any lien created or permitted to subsist with the prior written consent of the Security Trustee (acting on instructions of the Majority Lenders),
|
|
(a)
|
the Owner, the Bareboat Charterer during the Bareboat Charter Period and Ocean Rig; and
|
|
(b)
|
from time to time, any of the Builder, the Manager, any Charterer Parent and/or Charterer (but only to the extent, in any such case, that the same has or may in the future have, outstanding liabilities owing to the Owner, the Bareboat Charterer during the Bareboat Charter Period, Ocean Rig or any Finance Party under any Finance Document or Related Contract to which it is a party).
|
|
(a)
|
for the purpose of determining a Lender's share in a utilisation of a Facility, the proportion which its Commitment under that Facility bears to all the Commitments under that Facility; and
|
|
(b)
|
for any other purpose on a particular date:
|
|
(i)
|
the proportion which a Lender's share of the Loans (if any) bears to all the Loans;
|
|
(ii)
|
if there is no Loan outstanding on that date, the proportion which its Commitment bears to the Total Commitments on that date; or
|
|
(iii)
|
if the Total Commitments have been cancelled otherwise, the proportion which its Commitments bore to the Total Commitments immediately before being cancelled.
|
|
(a)
|
the Refund Guarantee;
|
|
(b)
|
the Shipbuilding Contract;
|
|
(c)
|
the Other Shipbuilding Contract;
|
|
(d)
|
the Obligatory Insurances;
|
|
(e)
|
each Drilling Charter;
|
|
(f)
|
the Petrobras Charter Novation Agreement;
|
|
(g)
|
any Charterer Parent Guarantee;
|
|
(h)
|
the Management Agreement;
|
|
(i)
|
the Management Agreement Assignment Agreement;
|
|
(j)
|
the Sister Shipbuilding Contract;
|
|
(k)
|
the Bareboat Charter; and
|
|
(l)
|
the OCR Time Charter.
|
(a) | (i) |
until the date falling immediately prior to the first anniversary of the Utilisation Date in respect of the Delivery Loan, the amount available to be transferred from the Proceeds Account pursuant to Clause 12.12 (Payments to the Debt Service Reserve Account prior to the Utilisation Date of the Delivery Loan) until such time as the balance thereof is the amount referred to in (ii) below; and
|
|
(ii) |
thereafter, the aggregate amount required to pay the next scheduled principal and interest instalment under this Agreement on or before the next Repayment Date (with scheduled interest in respect of any Hedged Portion being deemed to be payable at the applicable Fixed Rate); and
|
||
(b) | the amount from time to time deposited pursuant to Clause 16.33(b)(ii) (Leverage Ratio), |
|
(a)
|
for the Instalment payable on the Instalment Loan 1 Utilisation Date, the lower of 15.45% of the Expected Contract Price and US$106,789,466;
|
|
(b)
|
for the Instalment payable on the Instalment Loan 2 Utilisation Date, the lower of 15.05% of the Expected Contract Price and US$104,040,750;
|
|
(c)
|
for the Instalment payable on the Instalment Loan 3 Utilisation Date, the lower of 15.05% of the Expected Contract Price and US$104,040,750;
|
|
(d)
|
for the Instalment payable on the Delivery Loan Utilisation Date, the lower of 40.125% of the Expected Contract Price and US$277,442,000.
|
|
(a)
|
the Mortgage;
|
|
(b)
|
the Mortgage Amendment Agreement;
|
|
(c)
|
the General Assignment;
|
|
(d)
|
the Share Charge;
|
|
(e)
|
Bareboat Charterer Pledge of Shares;
|
|
(f)
|
the Share Charge Accession Deed;
|
|
(g)
|
the Swap Agreement Assignment;
|
|
(h)
|
the Delivery General Assignment;
|
|
(i)
|
the Owner Accounts Charge Agreement;
|
|
(j)
|
the Bareboat Charterer Accounts Charge Agreement;
|
|
(k)
|
each Charter Assignment;
|
|
(l)
|
the Ocean Rig Petrobras Charter Assignment;
|
|
(m)
|
the Bareboat Charterer Petrobras Charter Assignment;
|
|
(n)
|
the Bareboat Charter Assignment;
|
|
(o)
|
the OCR Time Charter Assignment
|
|
(p)
|
the Management Agreement Assignment;
|
|
(q)
|
the Management Agreement Assignment Side Letter;
|
|
(r)
|
the Floating Charge;
|
|
(s)
|
the Sponsor Guarantee;
|
|
(t)
|
the Ocean Rig Guarantee;
|
|
(u)
|
the Ocean Rig Guarantee Confirmation;
|
|
(v)
|
the Confirmatory Charge;
|
|
(w)
|
the Confirmatory Charge No.2;
|
|
(x)
|
the Bareboat Charterer Guarantee;
|
|
(y)
|
the Petrobras Consent;
|
|
(z)
|
the Bareboat Charterer Insurances Assignment; and
|
|
(aa)
|
any other document designated as such in writing by the Owner and the Facility Agent.
|
|
(a)
|
each Security Agreement; and
|
|
(b)
|
any other document evidencing or creating security over any asset of the Owner, or Ocean Rig or the Bareboat Charterer as relevant to secure any obligation of the Owner, or Ocean Rig or the Bareboat Charterer as relevant to the Finance Parties or any of them under the Finance Documents.
|
|
(a)
|
the Operational Software;
|
|
(b)
|
the identity of the then current suppliers of the Operational Software;
|
|
(c)
|
all upgrades carried out in respect of the Operational Software or changes to the Software Licences; and
|
|
(d)
|
all Software Licences.
|
|
(a)
|
a subsidiary within the meaning of section 736 of the Companies Act 1985; and
|
|
(b)
|
unless the context otherwise requires, a subsidiary undertaking within the meaning of section 258 of the Companies Act 1985.
|
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of the Vessel;
|
|
(b)
|
requisition for title or other compulsory acquisition of the Vessel otherwise than by requisition for hire; and
|
|
(c)
|
capture, seizure, arrest, detention or confiscation of the Vessel by any Government Entity or by persons acting or purporting to act on behalf of any government or any other person or entity which deprives the Owner of the Vessel or, as the case may be the Charterer, or as the case may be in relation to the Petrobras Charter Ocean Rig prior to, and the Bareboat
|
|
(a)
|
In this Agreement, unless the contrary intention appears, a reference to:
|
|
(i)
|
an amendment includes a supplement, novation, restatement or re-enactment and amended will be construed accordingly;
|
|
(ii)
|
assets includes present and future properties, revenues and rights of every description;
|
|
(iii)
|
an authorisation includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration or notarisation;
|
|
(iv)
|
disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;
|
|
(v)
|
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money;
|
|
(vi)
|
a person includes any individual, company, corporation, unincorporated association or body (including a partnership, trust, joint venture or consortium), government, state, agency, organisation or other entity whether or not having separate legal personality and shall include its successors, permitted assignees and permitted transferees;
|
|
(vii)
|
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
|
(viii)
|
know your customer requirements are the identification checks that a Finance Party requests in order to meet its obligations under any Applicable Law to identify a person who is (or is to become) its customer;
|
|
(ix)
|
a currency is a reference to the lawful currency for the time being of the relevant country;
|
|
(x)
|
a Default being outstanding or continuing means that it has not been cured, remedied or waived;
|
|
(xi)
|
a provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;
|
|
(xii)
|
a Clause, a Subclause, an Appendix or a Schedule is a reference to a clause, subclause, appendix of, or a schedule to, this Agreement;
|
|
(xiii)
|
a Party or any other person includes its successors in title, permitted assigns and permitted transferees;
|
|
(xiv)
|
a Finance Document, Sister Finance Document, other document or security includes (without prejudice to any prohibition on amendments) any amendment to that Finance Document, Sister Finance Document or other document or security, including any change in the purpose of, any extension of or any increase in the amount of a facility or any additional facility;
|
|
(xv)
|
a time of day is a reference to London time; and
|
|
(xvi)
|
words importing the plural shall include the singular and vice versa.
|
|
(b)
|
Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:
|
|
(i)
|
if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);
|
|
(ii)
|
if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and
|
|
(iii)
|
notwithstanding subparagraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.
|
|
(c)
|
Unless expressly provided to the contrary in a Finance Document, a person (other than any Secured Party or Affiliate of such Secured Party) who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any term of any Finance Document, no consent of any third party is required for any amendment (including any release or compromise of any liability) or termination of that Finance Document.
|
|
(d)
|
Unless the contrary intention appears or unless the context otherwise permits:
|
|
(i)
|
a reference to a Party will not include that Party if it has ceased to be a party under this Agreement;
|
|
(ii)
|
a word or expression used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement; and
|
|
(iii)
|
any obligation of the Owner under the Finance Documents which is not a payment obligation remains in force in accordance with its terms for so long as any payment obligation of the Owner is or may be outstanding under the Finance Documents.
|
|
(e)
|
If, following the occurrence of an Event of Default which is continuing, any Finance Party acting reasonably considers that an amount paid to it under a Finance Document is capable of being avoided or otherwise set aside on the liquidation or administration of the payer or otherwise, then that amount shall not be considered to have been irrevocably paid for the purposes of that Finance Document.
|
|
(f)
|
The headings in this Agreement do not affect its interpretation.
|
|
(g)
|
Where the Owner requests any amendment, waiver or grace period in respect of any provision of the Transaction Documents which would conflict with any provision of the GIEK Guarantee or require consent from GIEK under the GIEK Guarantee, the Eksportfinans Lenders may request the Facility Agent to ask GIEK for a response to such request and the Facility Agent shall not be obliged to respond to the Owner until it receives a response from GIEK.
|
|
(h)
|
Where the Owner requests any amendment, waiver or grace period in respect of any provision of the Transaction Documents which would conflict with any provision of the KEXIM Guarantee or require consent from KEXIM, the KEXIM Lenders may request the Facility Agent to ask KEXIM for a response to such request and the Facility Agent shall not be obliged to respond to the Owner until it receives a response from KEXIM.
|
|
(a)
|
Subject to the terms of this Agreement, the Lenders make available to the Owner a term loan facility in a maximum aggregate amount equal to the Maximum Facility Amount.
|
|
(b)
|
The Facility shall be capable of being drawn up to the Maximum Facility Amount on the dates described in Clause 4.2(a) (Completion of Requests).
|
|
(a)
|
financing or refinancing the cost of construction of the Vessel pursuant to the Shipbuilding Contract;
|
|
(b)
|
financing such other items and costs as are included in the Vessel Cost; and
|
|
(c)
|
payment of amounts as described in Clause 4.1(e) (Giving of Requests).
|
|
(a)
|
Unless otherwise agreed in writing by all the Finance Parties:
|
|
(i)
|
the obligations of a Finance Party under the Finance Documents are several;
|
|
(ii)
|
failure by a Finance Party to perform its obligations does not affect the obligations of any other Party under the Finance Documents;
|
|
(iii)
|
no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;
|
|
(iv)
|
the rights of a Finance Party under the Finance Documents are separate and independent rights;
|
|
(v)
|
a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights; and
|
|
(vi)
|
a debt arising under the Finance Documents to a Finance Party is a separate and independent debt.
|
|
(b)
|
If at any time a Finance Party fails to pay when due its share of any Loan amount when required to do so, the Mandated Lead Arranger agrees that it shall consult with the Owner for a reasonable period of time and act in good faith to assist the Owner in resolving the matter, but at all times without any liability on the part of the Mandated Lead Arranger.
|
|
(c)
|
Each Swap Bank is a Party to this Agreement only in order to take the benefit of the rights given to the Finance Parties by this Agreement.
|
|
(a)
|
A Request in respect of any Loan may not be given until the Facility Agent has notified the Owner and the Lenders that it has received all of the documents and evidence set out in
|
|
(b)
|
That part of the Delivery Loan which relates to all or part of the Instalment payable on the Delivery Date shall, if the Delivery Date has not at such time occurred, be deposited by the Facility Agent into the account of [the Refund Guarantor]1 (the Escrow Account) with its correspondent bank in New York three Business Days prior to the proposed Delivery Date, subject to the following irrevocable instructions (addressed to [the Refund Guarantor] with a copy to the correspondent bank):
|
|
(c)
|
If the Delivery Date has not occurred at the time the Request for the Delivery Loan is served, the Owner undertakes with the Finance Parties not to sign a Protocol of Delivery and Acceptance in respect of the Vessel unless the Facility Agent has confirmed that the conditions precedent referred to in Clause 3.1(a) above in respect of the Delivery Loan above have been or will, simultaneously with such signing, be satisfied.
|
|
(a)
|
the Repeating Representations are correct in all material respects;
|
|
(c)
|
the Facility Agent has received an officer's certificate from the Owner confirming that:
|
|
(i)
|
save as permitted by the Finance Documents, there have been no material amendments or variations agreed to the Related Contracts existing at such time that have not been agreed by the Facility Agent in accordance with the terms of this Agreement;
|
|
(ii)
|
no Related Contracts have been rescinded or terminated by any party to them;
|
|
(iii)
|
no action has been taken by (a) the Owner or (b) by any other party which might in any way render any Related Contract inoperative or unenforceable, in whole or in any part; and
|
|
(iv)
|
none of the events mentioned in Clauses 18.6 (Insolvency), 18.7 (Insolvency proceedings), 18.8 (Creditors' process), 18.9 (Cessation of business), or 18.10 (Failure to pay final judgment) has occurred, to the best of the Owner's knowledge and belief (acting with the proper due diligence), in respect of any of the Refund Guarantor, the Builder, the Manager, the Charterer Parent (if applicable) or the Charterer (if applicable); and
|
|
(d)
|
the Facility Agent has received such other documents which, based on legal advice received from the relevant advisers referred to in this Agreement are necessary to evidence the legality, validity and enforceability of the obligations of the parties to any Finance Document being delivered on such Utilisation Date.
|
|
(a)
|
The Owner may borrow a Loan by giving to the Facility Agent a duly completed Request.
|
|
(b)
|
Unless the Facility Agent otherwise agrees, the latest time for receipt by the Facility Agent of a duly completed Request is 11.00 a.m. three Business Days prior to the date of the proposed borrowing and, in respect of the Delivery Loan, ten Business Days prior to the date of the proposed borrowing. The Owner undertakes that any advance notices regarding expected payment dates of Instalments shall be promptly delivered to the Facility Agent at the same time as such notices are received by the Owner or the Manager, as the case may be, from the Builder. The Facility Agent shall provide copies of such advance notices promptly to KEXIM upon receipt of the same from the Owner and to the other Lenders upon request.
|
|
(c)
|
The Owner may, subject to Clauses 4.1(d) and 4.1(e), submit up to only four Requests, one in respect of each of the Instalment Loan 1, the Instalment Loan 2, the Instalment Loan 3, and the Delivery Loan (each an Instalment Loan).
|
|
(d)
|
Notwithstanding Clause 4.1(c), the Owner may submit one Request for the Incidental Costs Loan and Requests for Incidental Vessel Costs Loans in accordance with the provisions of Clause 4.2 (Completion of Requests).
|
|
(e)
|
Notwithstanding Clause 4.1(c), if on the Final Completion Date there is an Undrawn Amount, the Owner may, if the Facility Agent (acting on the instructions of all the Lenders who shall have full discretion in connection with such instructions) so agrees, and on such terms and subject to such conditions as the Facility Agent may, acting on such instructions, require, submit a Request for an amount not exceeding the Undrawn Amount to be used to reimburse the Owner for amounts of Vessel Costs paid by it and not already financed hereunder or such other purposes as the Lenders may agree.
|
|
(f)
|
Each Request is irrevocable.
|
|
(a)
|
the Utilisation Date is a Business Day falling within the relevant Availability Period for that Loan and:
|
|
(i)
|
for an Instalment Loan (other than the Delivery Loan), is the date on which the corresponding Instalment is payable under the terms of the Shipbuilding Contract or, in the case of an Instalment Loan which is to be used to refinance an Instalment, is a date after the date on which the Owner has paid the corresponding Instalment to the Builder under the Shipbuilding Contract;
|
|
(ii)
|
for the Delivery Loan, is the Delivery Date; or
|
|
(iii)
|
for an Incidental Vessel Costs Loan:
|
|
(A)
|
for the first Incidental Vessel Costs Loan, is a date on or after the date of this Agreement; and
|
|
(B)
|
for the second Incidental Vessel Costs Loan, is a date not earlier than 31 October 2008 and for any other Incidental Vessel Costs Loan, is a date falling at least three (3) months after the previous Incidental Vessel Costs Loan Utilisation Date
|
|
(b)
|
the requested Incidental Costs Loan is in an amount not exceeding the aggregate amount of:
|
|
(i)
|
the Incidental Loan Costs incurred in the period up to and including the Utilisation Date of the Incidental Costs Loan;
|
|
(ii)
|
the aggregate amount of the Approved Incidental Vessel Costs payable in the period up to and including the Utilisation Date of the Incidental Costs Loan and supported by invoices or receipts; and
|
|
(iii)
|
the aggregate estimated amount of Approved Incidental Vessel Costs which will become payable in the period up to and including the Utilisation Date of the Instalment Loan 1, supported by evidence satisfactory to the Facility Agent (acting in its sole discretion);
|
|
(c)
|
the requested Loan (other than the requested Incidental Costs Loan) is in an amount not exceeding:
|
|
(i)
|
if either:
|
|
(A)
|
the Petrobras Charter has been entered into at least ten (10) Business Days prior to the relevant Utilisation Date; or
|
|
(B)
|
if a Drilling Charter and a Sister Drilling Charter has been entered into ten (10) Business Days prior to the relevant Utilisation Date; and
|
|
(I)
|
the Drilling Charter is a Five Year Drilling Charter and the Sister Drilling Charter is a Sister Five Year Drilling Charter; or
|
|
(II)
|
the Drilling Charter is a Five Year Drilling Charter and the Sister Drilling Charter is a Sister Three Year Drilling Charter; or
|
|
(III)
|
the Drilling Charter is a Three Year Drilling Charter and the Sister Drilling Charter is a Sister Five Year Drilling Charter,
|
|
(ii)
|
if the conditions in Clause 4.2(c)(i) have not been met, a percentage of the Scheduled Instalment Amount or, as applicable the Approved Incidental Vessel Costs (in each case determined by the Facility Agent) to be derived from an iterative process in a manner that the expected LTC Ratio at the Utilisation Date following the advance of the Loan equals zero point four (0.4),
|
(d)
|
the amount requested for any Loan when aggregated with:
|
|
(i)
|
existing Loans advanced by the Lenders;
|
|
(ii)
|
the amounts to be drawn down under any other Request issued for drawdown on the proposed Utilisation Date; and
|
(e)
|
all amounts capitalised pursuant to Clause 4.4, do not exceed the Maximum Facility Amount; and
|
(f)
|
subject to Clause 4.3, the amount of the Loan requested is apportioned pro rata to the Eksportfinans Loan, the KEXIM Loan and the Commercial Loan by reference to the proportion of the Total Commitments borne by the Commitments of the Eksportfinans Lenders, the KEXIM Lenders and Commercial Lenders respectively at the relevant time.
|
|
(a)
|
The Facility Agent must promptly notify each Lender of the details of the requested Loan and the amount of its share in that Loan (as calculated by the Facility Agent in accordance with this Clause 4.3).
|
|
(b)
|
No Eksportfinans Lender is obliged to participate in the Incidental Costs Loan or any Incidental Vessel Costs Loan.
|
|
(c)
|
The amount of each Lender's share of each requested Instalment Loan will be its Pro Rata Share on the proposed Utilisation Date but adjusted so that the total amount lent by the Eksportfinans Lenders in respect of such Loan is equal to the aggregate which would have been, and would be, lent by the Eksportfinans Lenders, if:
|
|
(i)
|
they had participated to the extent of their Pro Rata Share in the Incidental Costs Loan and each Incidental Vessel Costs Loan drawn on or prior to the Utilisation Date of the relevant Instalment Loan; and
|
|
(ii)
|
they were to participate to the extent of their Pro Rata Share in the relevant Instalment Loan,
|
|
(d)
|
The Facility Agent shall calculate the amount to be lent by each of the Lenders in connection with each Instalment Loan and shall notify each of the Lenders of such amount as soon as practicable after receipt by the Facility Agent of the Request relating to that Instalment Loan.
|
|
(e)
|
No Lender is obliged to participate in a Loan if, as a result:
|
|
(i)
|
its share in the Loans under the Facility would exceed its Commitment;
|
|
(ii)
|
the Loans would exceed the Total Commitments;
|
|
(iii)
|
in respect of the Eksportfinans Lenders, the aggregate of the Eksportfinans Loans would exceed the Maximum Eksportfinans Loan Amount;
|
|
(iv)
|
in respect of the KEXIM Lenders, the aggregate of the KEXIM Loans would exceed the Maximum KEXIM Loan Amount; or
|
|
(v)
|
in respect of the Commercial Lenders, the aggregate of the Commercial Loans would exceed the Maximum Commercial Loan Amount;
|
|
(f)
|
If the conditions set out in this Agreement have been met, each Lender must ensure that its share in the requested Loan will be available to the Facility Agent for the Owner through its Facility Office by 10.00 a.m. on the relevant Utilisation Date.
|
|
(a)
|
During the Pre-Completion Period the Commitment fee payable in accordance with Clause 22.1 (Commitment fee), and interest calculated and payable in accordance with Clause 7.1 (a) and 7.1 (c) (other than any such Commitment fees or interest included in the Incidental
|
|
(b)
|
The amount of any Incidental Loan Costs to be capitalised may not in any circumstances exceed, when aggregated with the Loans already made and amounts of Incidental Loan Costs already capitalised under the relevant Loan, the Maximum Facility Amount or cause the applicable LTC Ratio set out in Clause 4.2 (c) (i) or 4.2 (c) (ii) to be breached. Any Incidental Loan Costs due and payable which cannot be capitalised in accordance with this Clause 4.4 must be paid by the Owner on the due date.
|
|
(a)
|
The Owner must repay the Loans to the Facility Agent on each Repayment Date in accordance with the Repayment Schedule.
|
|
(b)
|
The Facility Agent shall notify the Owner and the Lenders of any change in the amount or the timing of any Repayment Instalment as soon as practicable prior to or, as the case may be, after the Final Completion Date. In the event of any such notification, the Facility Agent shall replace the Repayment Schedule attached at Schedule 5 (Loan Repayment Schedule) with a new Repayment Schedule reflecting the correct Repayment Instalments and the correct Repayment Dates and promptly provide a copy thereof to the Owner and the Lenders.
|
|
(c)
|
The Loans shall be repaid in full on the Final Maturity Date.
|
|
(d)
|
Any amounts repaid under this Clause 5 may not be re-borrowed.
|
|
(a)
|
If it becomes, or to the knowledge of any Lender is to become, unlawful or otherwise prohibited (whether temporarily or permanently) in any jurisdiction for a Lender to perform any of its obligations as contemplated by a Finance Document or to fund or maintain its share in one or more of the Loans, or to exercise any of its material rights under the Finance Documents, that Lender shall notify the Facility Agent and the Owner (any such event being a Lender Event).
|
|
(b)
|
After notification under paragraph (a) above (and subject always to satisfactory alternate arrangements being put into place in accordance with paragraph (d) below):
|
|
(i)
|
the Owner must repay or prepay the share of that Lender in the relevant Loan or Loans on the date specified in paragraph (c) below; and
|
|
(ii)
|
the Commitments of that Lender will be immediately cancelled.
|
|
(c)
|
The date for prepayment of a Lender's share in a Loan will be:
|
|
(i)
|
the last day of the current Term of that Loan; or
|
|
(ii)
|
if earlier, the date specified by that Lender in the notice delivered to the Owner under paragraph (a) above (being no earlier than the last day of any applicable grace period permitted by Applicable Law).
|
|
(d)
|
If, prior to the occurrence of a Lender Event, a Lender receives notice or becomes aware that a Lender Event will occur, that Lender and the Owner shall enter into discussions in good faith for a period of twenty (20) days (or such shorter period, if any, as may be available prior to the Lender Event taking effect) (the Lender Consultation Period) with a view to agreeing how the effects of the Lender Event can be avoided or mitigated so that alternative legal, valid and binding obligations, in form and substance satisfactory to that Lender and the Owner, are put in place. If that Lender and the Owner cannot agree and complete such arrangements prior to the end of the Lender Consultation Period, the Owner shall be obliged to immediately prepay the share of that Lender in the Loan on the date specified in paragraph (c) above.
|
|
(a)
|
if there is a Total Loss (whether before or after the Delivery Date), on the earlier of:
|
|
(i)
|
the date falling 90 days after the Date of Total Loss; and
|
|
(ii)
|
the date of receipt by the Owner or the Security Trustee of the proceeds of insurance relating to such Total Loss;
|
|
(b)
|
if the Owner, or in the case of the Petrobras Charter the Bareboat Charterer, fails to deliver the Vessel to the Charterer in accordance with the terms of a Drilling Charter (other than in circumstances where there is a Charter Termination Event), on the date of such failure;
|
|
(c)
|
if either the Builder or the Owner is in breach of any of its material obligations under the Shipbuilding Contract, or either the Manager, the Bareboat Charterer or the Owner is in breach of any of its material obligations under any other Related Contract, on the date falling 20 days after the date on which the Facility Agent gives written notice to the Owner that the Majority Lenders have so determined and such breach is not remedied or otherwise compensated for, in each case, to the satisfaction of the Majority Lenders within such period, or if the matter has been referred to arbitration within that 20-day period, upon the earlier of a settlement being reached in respect of such arbitration and 5 days after the receipt of the final arbitration award;
|
|
(d)
|
if the Vessel has not been delivered by the Builder by the Petrobras Acceptance Longstop Date;
|
|
(e)
|
if a material part of the assets of the Charterer or, if applicable, the Charterer Parent are seized, expropriated, or compulsorily acquired, nationalised, confiscated or requisitioned by any Government Entity or by persons purporting to act on behalf of any Government Entity, subject, however, to the provisions of Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement);
|
|
(f)
|
if a Charter Termination Event occurs, on the date of the occurrence of such Charter Termination Event, subject, however, to the provisions of Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement);
|
|
(g)
|
if the Vessel is sold, on or before the date on which the sale is completed;
|
|
(h)
|
if the Shipbuilding Contract is terminated in circumstances where the Refund Guarantee is payable upon the earlier of:
|
|
(i)
|
the date of receipt of the moneys under the Refund Guarantee; and
|
|
(ii)
|
20 days after the date of termination or if the matter has been referred to arbitration within that 20-day period, upon the earlier of a settlement being reached in respect of such arbitration and 5 days after the receipt of the final arbitration award;
|
|
(i)
|
if the Shipbuilding Contract is terminated in circumstances other than those referred to in paragraph (c), on the date of its termination;
|
|
(j)
|
if
|
|
(k)
|
if on or prior to the Delivery Date the obligations and requirements under Clause 16.35 (Petrobras Charter) below have not been satisfied.
|
|
(a)
|
if the Sister Vessel is sold, on or before the date on which the sale is completed; or
|
|
(b)
|
if Ocean Rig ceases, for whatever reason, to own or retain the legal and beneficial interest in at least 50% of the shares of the Sister Owner.
|
|
(a)
|
Without prejudice to the provisions of Clause 6.1 (Mandatory prepayment - illegality), if the Facility Agent or the Owner become aware that any of the following (an Invalidity Event) has occurred or is likely to occur:
|
|
(i)
|
any Finance Document or Related Contract or any material provision of any such document ceasing to be valid in any way which, in the case of a Finance Document, is material and, in the case of a Related Contract, in any way which has a Material Adverse Effect or is alleged by the Owner to be ineffective in accordance with its terms for any reason;
|
|
(ii)
|
any Security Document creating a Security Interest in favour of the Security Trustee (on trust for the Finance Parties) ceasing to provide a perfected first priority security interest in favour of the Security Trustee (on trust for the Finance Parties) (subject to any Permitted Liens having priority in law); or
|
|
(iii)
|
the Owner repudiates a Finance Document,
|
|
(b)
|
If, prior to the occurrence of an Invalidity Event, the Facility Agent or the Owner receives an Invalidity Notice, the Facility Agent (acting on the instructions of the Majority Lenders) and the Owner shall enter into discussions in good faith for a period of 20 days or such shorter period, if any, as may be available prior to the Invalidity Event taking effect (the Consultation Period) with a view to agreeing how the effects of the Invalidity Event can be avoided so that alternative legal, valid and binding obligations, in form and substance satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) are provided in replacement of the affected Finance Document or Related Contract. In conducting such discussions and reaching a conclusion, the Lenders shall act in good faith but otherwise in their absolute discretion. If the Facility Agent (acting on the instructions of the Majority Lenders) and the Owner cannot agree on and complete such arrangements prior to the earlier of the end of the Consultation Period and the date upon which the relevant Invalidity Event becomes effective, the Owner shall be obliged to immediately prepay all outstanding Loans together with accrued interest and all other amounts accrued under the Finance Documents, and the Commitments of the Lenders shall be immediately cancelled.
|
|
(a)
|
the Initial Acceptance Tests (as that term is defined in the Petrobras Charter) in relation to the Vessel have not been completed and the Final Completion Date has not occurred; and
|
|
(b)
|
the Petrobras Charter Novation has not occurred; and
|
|
(c)
|
the documents listed in Clause 16.37(b), and any notices, conditions precedent or other documents required thereunder have not been entered into, delivered or satisfied.
|
|
(a)
|
The Owner may, at any time after the Final Completion Date and giving not less than 30 days' prior written notice to the Facility Agent, prepay a Loan in whole or in part on the last day of the relevant Term so long as it simultaneously (or if not then permitted on the earliest permitted date) prepays a pro rata amount of the principal outstanding under the Sister Loan Agreement.
|
|
(b)
|
A prepayment must be in a minimum amount of US$10,000,000 and, in excess of that, in multiples of US$1,000,000.
|
|
(a)
|
The Owner may, by giving not less than five Business Days' prior notice to the Facility Agent, cancel the unutilised amount of the Total Commitments in whole or in part so long as it cancels a pro rata amount of commitments under the Sister Loan Agreement.
|
|
(b)
|
Partial cancellation of the Total Commitments must be in a minimum amount of US$10,000,000 and, in excess of that, in multiples of US$1,000,000.
|
|
(c)
|
Any cancellation in part will be applied against the relevant Commitment of each Lender pro rata and in respect of the Facility, across the Eksportfinans Loan, the KEXIM Loan and the Commercial Loan pro rata.
|
|
(a)
|
If the Owner is, or will be, required to pay to a Lender a Tax Payment or an Increased Cost, the Owner may, while the requirement continues, give notice to the Facility Agent requesting prepayment and cancellation in respect of that Lender.
|
|
(b)
|
After notification under paragraph (a) above:
|
|
(i)
|
the Owner must repay or prepay that Lender's share in each Loan made to it on the date specified in paragraph (c) below; and
|
|
(ii)
|
the Commitment of that Lender will be immediately cancelled.
|
|
(c)
|
The date for prepayment of a Lender's share in a Loan will be the last day of the current Term for the relevant Loan or any earlier date agreed between the Owner, the Facility Agent and that Lender.
|
|
(a)
|
Except where this Clause 6 expressly provides otherwise, any partial prepayment of a Loan will be applied against the Repayment Instalments in the inverse order of their maturity and shall be applied pro rata in respect of the amounts outstanding to the Eksportfinans Lenders, the KEXIM Lenders and the Commercial Lenders.
|
|
(b)
|
Upon any such partial prepayment, the Facility Agent shall, if applicable, replace the Repayment Schedule attached at Schedule 5 (Loan Repayment Schedule) with a new Repayment Schedule(s) reflecting the correct Repayment Instalments and promptly provide a copy thereof to the Owner.
|
|
(c)
|
No amount of a Loan prepaid (in full or in part) under this Agreement may subsequently be re-borrowed.
|
|
(a)
|
Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) and the affected Loans and Commitments.
|
|
(b)
|
All prepayments under this Agreement must be made with accrued interest on the amount prepaid.
|
|
(c)
|
All prepayments (whether voluntary or mandatory) under this Agreement shall be subject to Break Costs (if any). Each Lender claiming Break Costs shall, as soon as reasonably practicable after demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Term in which they accrue. The Facility Agent agrees to provide a copy of such certificate to the Owner upon request by the Owner.
|
|
(d)
|
No prepayment or cancellation is allowed except in accordance with the express terms of this Agreement.
|
|
(a)
|
The rate of interest on each Commercial Loan for each Term during the Pre-Completion Period and the Post-Completion Period is the percentage rate per annum equal to the aggregate of:
|
|
(i)
|
the Applicable Margin at such time;
|
|
(ii)
|
LIBOR; and
|
|
(iii)
|
the Mandatory Cost, if any.
|
|
(b)
|
The rate of interest on each Eksportfinans Loan for each Term during the Pre-Completion Period and the Post-Completion Period shall be the aggregate of:
|
|
(i)
|
the applicable Pre-Completion Eksportfinans Interest Rate or, as the case may be, the applicable Post-Completion Eksportfinans Interest Rate; and
|
|
(ii)
|
the Mandatory Cost, if applicable.
|
|
(c)
|
The rate of interest on each KEXIM Loan for each Term during the Pre-Completion Period and the Post-Completion Period shall be the aggregate of:
|
|
(i)
|
LIBOR; and
|
|
(ii)
|
the Applicable Margin at such time.
|
|
(d)
|
Interest shall be calculated:
|
|
(i)
|
subject to paragraph (ii) below, by reference to the actual number of days elapsed
|
|
and on the basis of a year of 360 days in respect of any Loan; and
|
|
(ii)
|
on a 30/360 day basis in respect of any Eksportfinans Loan.
|
|
(e)
|
Interest shall accrue from and including the first day of each Term to but excluding the last day of such Term.
|
|
(a)
|
If the Owner fails to pay any amount payable by it under the Finance Documents, it must immediately on demand by the Facility Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before, on and after judgment.
|
|
(b)
|
Interest on an overdue amount is payable at a rate determined by the Facility Agent to be the aggregate of 3% per annum above the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan. For this purpose, the Facility Agent may (acting reasonably) select successive Terms of any duration of up to six months.
|
|
(c)
|
Notwithstanding paragraph (b) above, if the overdue amount is a principal amount of a Loan and becomes due and payable before the last day of its current Term, then:
|
|
(i)
|
the first Term for that overdue amount will be the unexpired portion of that Term; and
|
|
(ii)
|
the rate of interest on the overdue amount for that first Term will be 3% per annum above the rate then payable on that Loan.
|
|
(d)
|
Interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each of its Terms but will remain immediately due and payable.
|
|
(a)
|
Each Loan has successive Terms.
|
|
(b)
|
The first term for a Loan will start on the Utilisation Date for that Loan and each subsequent Term for a Loan will start on the expiry of the preceding Term for that Loan.
|
|
(c)
|
Subject to the following provisions of this Clause 8 the duration of each Term shall be three (3) months during the Pre-Completion Period, provided always that the first Term for the Incidental Costs Loan shall expire on 31st October 2008 or if earlier, at the next Repayment Date.
|
|
(d)
|
Subject to the following provisions of this Clause 8 the duration of each Term shall be six (6) months during the Post-Completion Period, provided always that the first Term after the Final Completion Date shall expire on the first Repayment Date set out in the Repayment Schedule, being 30th March 2012.
|
|
(a)
|
In this Clause 9, each of the following events is a market disruption event:
|
|
(i)
|
LIBOR is to be calculated by reference to the Reference Banks but no Reference Bank supplies a rate to the Facility Agent by 11.00 a.m. on the second London Business Day before the first day of the relevant Term; or
|
|
(ii)
|
the Facility Agent receives by close of business on the second London Business Day before the first day of the relevant Term notification from any Lender or Lenders whose shares in the relevant Loan exceed 30% of that Loan that the cost to them of obtaining matching deposits in the relevant interbank market is in excess of LIBOR for the relevant Term.
|
|
(b)
|
The Facility Agent must promptly notify the Owner and the Lenders of a market disruption event.
|
|
(c)
|
After notification under paragraph (b) above, the rate of interest on each Lender's share in the affected Loan for the relevant Term will be the aggregate of the relevant:
|
|
(i)
|
Applicable Margin at such time;
|
|
(ii)
|
rate notified to the Facility Agent by that Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Term, to be that which expresses as a percentage rate per annum the cost to that Lender of funding the Loan from whatever source it may reasonably select; and
|
|
(iii)
|
Mandatory Cost, if applicable, to that Lender's participation in the Loan.
|
|
(a)
|
If a market disruption event occurs and the Facility Agent or the Owner so require, the Owner and the Facility Agent must enter into negotiations for a period of not more than 20 days with a view to agreeing to an alternative basis for determining the rate of interest and/or funding for the affected Loan and any relevant future Loan.
|
|
(b)
|
Any alternative basis agreed between the Owner and the Facility Agent will be, with the prior written consent of all the Lenders, binding on all the Parties.
|
|
(c)
|
During the negotiation period referred to in paragraph (a) above and thereafter unless an agreement for such alternative basis is reached between the Parties, the provisions of Clause 9.2 shall apply.
|
|
(a)
|
The Owner must make all payments to be made by it under the Finance Documents without any Tax Deduction unless a Tax Deduction is required by Applicable Law.
|
|
(b)
|
Where the introduction of, or any change in, or any change in the interpretation, administration or application of, any Applicable Law or compliance with any law or regulation made after the date of this Agreement requires the Owner, or as the case may be, the Facility Agent, to make a Tax Deduction, as soon as the Owner or a Lender becomes aware of the same, it must promptly notify the Facility Agent. The Facility Agent must then promptly notify the affected Parties.
|
|
(c)
|
Following any notification referred to in paragraph (b) above, the amount of the payment due from the Owner will be increased or, as the case may be, the Owner shall make an additional payment, so that the amount (after making the Tax Deduction) received by the
|
|
(d)
|
If the Owner is required to make a Tax Deduction, it must make the Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by the Applicable Law.
|
|
(e)
|
Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction or, if later, promptly following receipt of the same, the Owner must deliver to the Facility Agent for the relevant Finance Party documents or other information (or certified copies thereof) evidencing satisfactorily to that Finance Party that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.
|
|
(a)
|
Except as provided below, the Owner must (within three Business Days of demand by the Facility Agent) indemnify a Finance Party by paying to such Finance Party an amount equal to any loss or liability which that Finance Party determines will be or has been suffered by that Finance Party for or on account of Tax in relation to a payment received or receivable (or any payment deemed to be received or receivable) under a Finance Document.
|
|
(b)
|
Paragraph (a) above does not apply:
|
|
(i)
|
to any Tax assessed on a Finance Party under the laws of the jurisdiction in which:
|
|
(A)
|
that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party has a Facility Office and is treated as resident for tax purposes; or
|
|
(B)
|
that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
|
(ii)
|
to the extent a loss or liability is compensated by an increased payment under Clause 10.1(c) (Tax gross-up).
|
|
(c)
|
A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Facility Agent of the event which will give, or has given, rise to the claim. The Facility Agent shall, in turn, notify the Owner.
|
|
(d)
|
A Finance Party shall, on receiving a payment from the Owner under this Clause 10.2, notify the Facility Agent.
|
|
(a)
|
All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly, subject to paragraph (b) below, if VAT is chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party must pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to such Party).
|
|
(b)
|
If VAT is chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party must also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient must promptly pay to the Relevant Party an amount equal to any credit or repayment from the relevant tax authority which it reasonably determines relates to the VAT chargeable on that supply.
|
|
(c)
|
Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party must also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses to the extent that the Finance Party reasonably determines that neither it nor any other member of any group of which it is a member for VAT purposes is entitled to credit or repayment from the relevant tax authority in respect of the VAT.
|
|
(a)
|
the introduction of, or any change in, or any change in the interpretation, administration or application of, any Applicable Law (including, for the avoidance of doubt, the implementation of matters set out in Basel II or any other revisions to the Basel Accord); or
|
|
(b)
|
compliance with any Applicable Law made after the date of this Agreement.
|
|
(a)
|
compensated for under another Clause or would have been but for an exception to that Clause;
|
|
(b)
|
attributable to the relevant Finance Party or any of its Affiliates wilfully failing to comply with any law or regulation;
|
|
(c)
|
attributable to a Tax Deduction required by Applicable Law to be made by the Owner; or
|
|
(d)
|
compensated for by the payment of Mandatory Cost.
|
|
(a)
|
If a Finance Party intends to make a claim for an Increased Cost it must notify the Facility Agent of the circumstances giving rise to and the amount of the claim, following which the Facility Agent will promptly notify the Owner.
|
|
(b)
|
Each Finance Party must, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Cost.
|
|
(a)
|
Each Finance Party must, in consultation with the Owner, use all reasonable endeavours to mitigate any circumstances which arise and which result or would result in any amount being payable under or pursuant to, or cancelled pursuant to, any of Clause 10 (Taxes) or Clause 11 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office and, in respect of any Increased Cost arising as a result of the implementation of the matters set out in Basel II or any other revisions to the Basel Accord, each Finance Party must apply its rights under Clause 11.1(a) (Increased Costs) on a non-discriminatory basis.
|
|
(b)
|
The Owner must indemnify that Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of any step taken by it under paragraph (a) above.
|
|
(c)
|
A Finance Party is not obliged to take any step under this Clause 11.4 if, in the opinion of that Finance Party (acting reasonably), to do so would be prejudicial to it.
|
|
(a)
|
maintain the Owner Accounts (other than the Equity Account) with the Account Bank until the Final Maturity Date; and
|
|
(b)
|
procure that the Bareboat Charterer shall maintain the Bareboat Charterer Accounts with the Account Bank during the Bareboat Charter Period,
|
|
(a)
|
The Owner shall pay, or procure that there is paid:
|
|
(i)
|
no later than one (1) Business Day after the date of service of each Request to the Facility Agent in the Pre-Completion Period, into the Proceeds Account, an amount equal to:
|
|
(A)
|
any Balancing Equity Contribution; and
|
|
(B)
|
the relevant Equity Contribution, in each case in respect of the Utilisation Date to which such Request relates; and
|
|
(ii)
|
the amount of each Loan into the Proceeds Account or if the Owner so requests in a Request in respect of an Instalment Loan, to an account of the Builder specified in the Request; and
|
|
(A)
|
no later than one (1) Business Day after the date of service of the Request in respect of the Incidental Costs Loan, an aggregate amount equal to US$9,000,000;
|
|
(B)
|
no later than one (1) Business Day after the date of service of the Request in respect of Instalment Loan 1, an aggregate amount equal to US$90,000,000; and
|
|
(C)
|
on or prior to the Amendment and Restatement Effective Date No.1, an aggregate amount equal to all anticipated Equity Contributions to be made until the Final Completion Date in accordance with the relevant Approved Budget.
|
|
(b)
|
If an Event of Default occurs, the Owner shall pay, or procure that there is paid, into the Equity Account an aggregate amount equal to all of the Equity Collateral that has not yet been paid.
|
|
(c)
|
Subject to the Owner's right to make withdrawals from the Equity Account in accordance with the provisions of this Agreement, the Owner shall ensure that the balance in the Equity Account at all times meet the requirements set out in this Clause 12.2.
|
|
(d)
|
If on the Amendment and Restatement Effective Date No.1 no Event of Default or Mandatory Prepayment Event has occurred and is continuing, the funds standing to the credit of the Equity Account (other than the anticipated Equity Contributions paid into the Equity Account in accordance with Clause 12.2 (a) (iii) (C)) shall be released to the Owner or to its order.
|
|
(e)
|
During the Pre-Completion Period and on the Final Completion Date the Owner shall procure that there is forthwith credited to the Proceeds Account any other amount payable or paid to the Owner (including any Liquidated Damages Payments paid by the Builder under the terms of the Shipbuilding Contract). Provided that no Event of Default or Mandatory Prepayment Event has occurred and is continuing, the Owner shall be entitled to instruct the Account Bank or, as the case may be, the Equity Account Bank to transfer (and irrevocably authorises the Security Trustee to instruct the Account Bank or, as the case may be, the Equity Account Bank to transfer):
|
|
(i)
|
on or immediately before each Utilisation Date, from the Equity Account into the Proceeds Account, an amount equal to the relevant Equity Contribution in respect of such Utilisation Date; and
|
|
(ii)
|
on each Utilisation Date, after the proceeds of the relevant Loan have been credited, sufficient amounts from the Proceeds Account to (A) any account specified by the Builder to be applied to make Instalment payments or, in the case that the relevant Loan is to be used to refinance the Instalment payment already paid to the Builder by the Owner, any account specified by the Owner, and (B) the account nominated by the Facility Agent, to be applied to part of the Incidental Costs Loan as does not relate to Incidental Vessel Costs, and (C) any account specified by the Owner to be applied towards such other items or costs as are included in the Vessel Cost,
|
|
(a)
|
first, to the Bareboat Charterer OPEX Account a transfer in accordance with Clause 12.5 (Transfers to the Bareboat Charterer OPEX Account) below;
|
|
(b)
|
secondly, to the Proceeds Account an amount representing all payments of Bareboat Charterhire and any Requisition Compensation;
|
|
(c)
|
thirdly, subject to retention of an amount in the Bareboat Charterer Proceeds Account equal to the Bareboat Charterer Tax, to the Bareboat Charterer CAPEX Account a transfer in accordance with Clause 12.6 (Transfers to the Bareboat Charterer CAPEX Account);
|
|
(d)
|
fourthly, subject to retention of an amount in the Bareboat Charterer Proceeds Account equal to the Bareboat Charterer Tax, to the Proceeds Account by way of Distribution any surplus funds standing to the credit of the Bareboat Charterer Proceeds Account;2
|
|
(a)
|
During the Post-Delivery Period, the Owner shall procure that there is forthwith credited to the Proceeds Account all Earnings and any Requisition Compensation payable to it and the Owner shall procure that the following transfers will then be made in the following order:
|
|
(i)
|
in relation to any Drilling Charter, (but excluding in relation to the Petrobras Charter during the Bareboat Charter Period):
|
|
(A)
|
first, to the Operating Expenses Account a transfer in accordance with Clause 12.7 (Transfers to the Operating Expenses Account);
|
|
(B)
|
secondly, to the Debt Service Account a transfer in accordance with Clause 12.8 (Transfers to Debt Service Account);
|
|
(C)
|
thirdly, to the extent required, a transfer to the Debt Service Reserve Account in accordance with Clause 12.13(b) (Payments to the Debt Service Reserve Account on or after the Utilisation Date of the Delivery Loan); and
|
|
(D)
|
fourthly, to the extent required, a transfer to the CAPEX Account in accordance with Clause 12.14 (Transfers to the CAPEX Account); and
|
|
(ii)
|
in relation to the Petrobras Charter during the Bareboat Charter Period:
|
|
(A)
|
first, to the Debt Service Account a transfer in accordance with Clause 12.8 (Transfers to Debt Service Account); and
|
|
(B)
|
secondly, to the extent required, a transfer to the Debt Service Reserve Account in accordance with Clause 12.13(b) (Payments to the Debt Service Reserve Account on or after the Utilisation Date of the Delivery Loan),
|
|
(b)
|
Subject to Clause 12.4(c) below, once the relevant Primary Transfers have been made the Owner shall instruct the Account Bank to transfer from the Proceeds Account (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Proceeds Account) to the Debt Service Reserve Account any surplus funds standing to the credit of the Proceeds Account (the Additional Reserve Transfers) until the date upon which the aggregate of the Additional Reserve Transfers and the Sister Additional Reserve Transfers is an amount equal to the Additional Reserve Amount.
|
|
(c)
|
To the extent that on 30 September 2014, the aggregate of the Additional Reserve Transfers and the Sister Additional Reserve Transfers is an amount less than the Additional Reserve Amount, then the Owner shall, on that date, deposit (or procure that an amount is deposited) in the Debt Service Reserve Account an amount such that the aggregate of the Additional
|
|
(d)
|
Provided no Default or Mandatory Prepayment Event is at such time continuing, the Owner and the Finance Parties may, notwithstanding the provisions of this Clause 12 vary the order and application of the Primary Transfers by agreement in writing, in each case acting reasonably.
|
|
a
|
=
|
the relevant amount of the Earnings and/or, as the case may be, Requisition Compensation to be transferred to the Debt Service Account out of the Proceeds Account;
|
|
A
|
=
|
the aggregate amount required to repay the next scheduled principal and interest instalment (provided that for the purposes of this Clause 12.8, scheduled interest in respect of any Hedged Portion shall be deemed to be payable at the applicable Fixed Rate);
|
|
N
|
=
|
the number of days in a Retention Period; and
|
|
n
|
=
|
the actual number of days elapsed from (and including) the immediately preceding Owner Earnings Deposit Date in the Retention Period or the first day of the Retention Period (where there is no preceding Owner Earnings Deposit Date in a Retention Period) up to (but excluding) the Owner Earnings Deposit Date,
|
|
(a)
|
On each Repayment Date:
|
|
(i)
|
to the extent that the Owner is required to make a periodic payment to a Swap Bank under a Swap Agreement, the Owner shall procure that (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Debt Service Account) an amount equal to the aggregate of any such periodic payments is
|
|
(ii)
|
to the extent that a Swap Bank is required to make a periodic payment to the Owner under a Swap Agreement then the Owner shall request that the Swap Bank pays such periodic payment directly into the Debt Service Account when due.
|
|
(b)
|
The Owner shall procure that there is transferred from the Debt Service Account (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Debt Service Account) to the Facility Agent after any payment to a Swap Bank as described in paragraph (a)(i) above:
|
|
(i)
|
on each Repayment Date, the amount of the Repayment Instalment then due in Dollars; and
|
|
(ii)
|
on the last day of each Term, the amount of interest then due in Dollars,
|
|
(a)
|
The Owner shall pay, or procure that there is paid to the Debt Service Reserve Account on or prior to the Amendment and Restatement Effective Date No.1 an amount equal to US$25,000,000.
|
|
(b)
|
At any time, and from time to time, prior to the Delivery Date, the Owner shall be entitled, with the prior approval of the Facility Agent (acting on the instructions of the Majority Lenders), to withdraw all or part of the moneys standing to the credit of the Debt Service Reserve Account in order to meet any costs and expenses the Owner may incur which have not been contemplated in the Approved Budget.
|
|
(c)
|
Any balance standing to the credit of the Debt Service Reserve Account on the Utilisation Date of the Delivery Loan, shall be utilised towards the funding of the Required DSRA Balance.
|
12.13
|
Payments to the Debt Service Reserve Account on or after the Utilisation Date of the Delivery Loan
|
|
(a)
|
The Owner shall ensure, from the Utilisation Date of the Delivery Loan and at all times thereafter until the Final Maturity Date, that the amount standing to the credit of the Debt Service Reserve Account is equal to the aggregate of the Required DSRA Balance and the
|
|
(b)
|
In addition to the transfers referred to in Clauses 12.4(b) and (c), on each Owner Earnings Deposit Date, following the relevant transfers referred to in Clauses 12.5 and 12.8 above, the Owner shall procure that there is transferred from the Proceeds Account (and irrevocably authorises the Security Trustee to instruct the Account Bank to transfer from the Proceeds Account) to the Debt Service Reserve Account an amount to ensure that the balance of the Debt Service Reserve Account at such time is an amount at least equal to the Required DSRA Balance, provided that the Required DSRA Balance shall not include any amounts transferred to the Debt Service Reserve Account in accordance with Clauses 12.4(b) and (c).
|
|
(c)
|
The Security Trustee shall be entitled to withdraw sums of money standing to the credit of the Debt Service Reserve Account in accordance with the terms of the Owner Accounts Charge Agreement.
|
12.17
|
Liability of Account Bank
|
|
(a)
|
Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided below, be made available by the Facility Agent to that Party by payment (as soon as practicable after receipt) to its account with such office or, in the case of KEXIM, in New York as it may notify to the Facility Agent for this purpose by not less than five Business Days' prior notice.
|
|
(b)
|
The Facility Agent may apply any amount received by it from the Owner in or towards payment (as soon as practicable after receipt) of any amount due from the Owner under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.
|
|
(c)
|
Where a sum is paid to the Facility Agent under this Agreement for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Facility Agent may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum has not been received by the Facility Agent, that Party must forthwith on demand by the Facility Agent refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Facility Agent at a rate reasonably calculated by the Facility Agent to reflect its cost of funds.
|
|
(a)
|
Unless a Finance Document specifies that payments under it are to be made in a different manner, the currency of each amount payable under the Finance Documents is determined under this Subclause.
|
|
(b)
|
Amounts payable in respect of Taxes, fees, costs and expenses are payable in the currency in which they are incurred.
|
|
(c)
|
Each other amount payable under the Finance Documents is payable in Dollars.
|
|
(a)
|
If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same month (if there is one) or the preceding Business Day (if there is not).
|
|
(b)
|
During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date.
|
|
(a)
|
Subject always to the provisions of the DPP and except to the extent otherwise provided in any Finance Document, if any Administrative Party receives a payment insufficient to discharge all the amounts then due and payable by the Owner under the Finance Documents, then the Administrative Party must apply that payment towards the obligations of the Owner under the Finance Documents in the following order:
|
|
(i)
|
first, in or towards payment or satisfaction pro rata of all costs, charges, sales taxes, expenses and liabilities incurred and due and payments made by the Finance Parties, the Account Bank or any receiver in enforcing rights under the Finance Documents and/or recovering possession of the Security Assets and all remuneration payable to the Finance Parties for which the relevant Finance Party is entitled to be reimbursed under the Finance Documents or any receiver under or pursuant to the Security Documents (including, without limitation, legal expenses and reinstatement costs) provided that, in respect of any such payment or payments payable to the Swap Banks, the amount paid shall not exceed the Swap Limit;
|
|
(ii)
|
secondly, in or towards payment pro rata of any due and unpaid fees, costs and expenses of the Finance Parties or the Account Bank under the Finance Documents to the extent not recovered under subparagraph (i) above provided that, in respect of any such payment or payments payable to the Swap Banks the amount paid, when aggregated with any amounts recovered by the Swap Banks under subparagraph (i) above, shall not exceed the Swap Limit;
|
|
(iii)
|
thirdly, in or towards payment pro rata of any interest on overdue amounts payable to the Finance Parties provided that, in respect of any such payment or payments payable to the Swap Banks the amount paid, when aggregated with any amounts recovered by the Swap Banks under subparagraphs (i) and (ii) above, shall not exceed the Swap Limit;
|
|
(iv)
|
fourthly, in or towards payment pro rata of any accrued but due and unpaid interest (other than interest on overdue amounts referred to in subclause (iii)) payable to the
|
|
(v)
|
fifthly, in or towards payment pro rata of:
|
|
(A)
|
any due but unpaid Break Costs of the Finance Parties; or
|
|
(B)
|
any due but unpaid principal payable to the Finance Parties, in each case, under the Finance Documents provided that, in respect of any such payment or payments payable to the Swap Banks the amount paid, when aggregated with any amount recovered by the Swap Banks under subparagraphs (i), (ii), (iii) and (iv) above, shall not exceed the Swap Limit;
|
|
(vi)
|
sixthly, in or towards payment pro rata to the Finance Parties of any other amounts which are due but unpaid by the Owner to any of the Finance Parties under the Finance Documents in such order as the Finance Parties shall determine provided that, in respect of any such payment or payments payable to the Swap Banks the amount paid, when aggregated with any amount recovered by the Swap Banks under subparagraphs (i), (ii), (iii), (iv) and (v) above, shall not exceed the Swap Limit;
|
|
(vii)
|
seventhly, any payments due but unpaid to the Swap Banks under a Swap Agreement to the extent not already recovered under paragraphs (i), (ii), (iii), (iv), (v) and (vi) above; and
|
|
(viii)
|
after all amounts payable or which may become payable to the Finance Parties under the Finance Documents have been paid in full, in or towards payment of the surplus, if any, to the Owner or other persons entitled thereto free of any charge or other restriction.
|
|
(b)
|
The Facility Agent must, if so directed by all the Lenders, vary the order set at subparagraphs (a)(ii) to (a)(vi) above, provided always that to the extent that the provisions of this paragraph shall conflict with the DPP, the provisions of the DPP shall prevail. Any amendment or variation to any other provision of this Agreement other than the order of payments in paragraph (a) above shall require the prior written consent of the Owner.
|
|
(c)
|
This Clause 13.7 will override any appropriation made by the Owner.
|
|
(a)
|
It is a corporation, duly organised and validly existing under the laws of the Marshall Islands.
|
|
(b)
|
It has the power to own its assets and carry on its business as it is being conducted.
|
|
(c)
|
It is indirectly wholly owned by Ocean Rig (acting through the Parent and the Parent Shareholder).
|
|
(d)
|
Subject to the Security Documents, the Parent is the legal and beneficial owner of all of the share capital of the Owner, the Parent Shareholder is the legal and beneficial owner of all of the share capital of the Parent and Ocean Rig is the legal and beneficial owner of all of the share capital of the Parent Shareholder.
|
|
(e)
|
No person has any right to call for the issue or transfer of any share capital or loan stock in the Owner other than in accordance with the Security Documents.
|
|
(f)
|
All of the shares in the capital of the Owner are fully paid up.
|
|
(a)
|
Subject to any general principles of law limiting its obligations, each Transaction Document to which it is a party is its legally binding, valid and enforceable obligation.
|
|
(b)
|
This Agreement and each Transaction Document to which it is a party is in the proper form for its enforcement in the jurisdiction of its incorporation.
|
|
(a)
|
any law or regulation applicable to it;
|
|
(b)
|
its constitutional documents; or
|
|
(c)
|
any agreement or instrument which is binding upon it or any of its assets.
|
|
(a)
|
No Default is outstanding under, or will result from the entry into, or the performance by it of any transaction contemplated by, any Transaction Document.
|
|
(b)
|
There is no outstanding material breach of any term of any Transaction Document to which it is a party and no person has disputed, repudiated or disclaimed liability under any Transaction Document to which it is a party or evidenced an intention to do so.
|
|
(c)
|
No other event is outstanding which constitutes a default under any document which is binding on it or any of its assets to an extent or in a manner which is reasonably likely to have a Material Adverse Effect.
|
|
(a)
|
Under Marshall Islands law and the laws of any other jurisdiction where the Owner carries on business, except for the registration of the Mortgage at the Marshall Islands Ships Registry, all authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, the Finance Documents have been obtained or effected (as appropriate) and are in full force and effect or will be in full force and effect at the time such authorisations are required in such jurisdiction.
|
|
(b)
|
It is not aware of:
|
|
(i)
|
any reason why any Transaction Authorisation required by it will not be obtained or effected by the time it is required;
|
|
(ii)
|
any steps to revoke or cancel any Transaction Authorisation required by it; or
|
|
(iii)
|
any reason why any Transaction Authorisation required by it will not be renewed when it expires without the imposition of any new restriction or condition.
|
|
(a)
|
have been prepared in accordance with IFRS or US GAAP, as the case may be, consistently applied; and
|
|
(b)
|
give a true and fair view of its financial condition as at the date to which they were drawn up, except, in each case, as disclosed to the contrary in those financial statements.
|
|
(a)
|
It is not required under the law of its jurisdiction of incorporation to make any Tax Deduction for or on account of Tax from any payment it may make under a Finance Document.
|
|
(b)
|
No claims are being, nor, as far as it is aware, might reasonably be expected to be, asserted against it with respect to Taxes.
|
|
(a)
|
The Owner and, to the best of the Owner's knowledge and belief (having made due enquiry), its Environmental Affiliates are in compliance with all material provisions of all applicable Environmental Laws in relation to the Vessel and its operations;
|
|
(b)
|
the Owner and, to the best of the Owner's knowledge and belief (having made due enquiry), its Environmental Affiliates have obtained or will, by the Delivery Date, have obtained all requisite Environmental Approvals in relation to the Vessel and its operations are and will, on the Delivery Date and at all times thereafter be in compliance, with such Environmental Approvals;
|
|
(c)
|
neither the Owner nor, to the best of the Owner's knowledge and belief (having made due enquiry), any of its Environmental Affiliates has received notice of nor have issued (or threatened to issue) any Environmental Claim in excess of US$2,500,000 or which, when aggregated with any other Environmental Claim in relation to the Vessel or its operations in any 12-month period, exceeds US$10,000,000 in relation to the Vessel which alleges that the Owner is not in compliance with applicable Environmental Laws in relation to the Vessel or Environmental Approvals in relation to the Vessel;
|
|
(d)
|
there is no Environmental Claim in relation to the Vessel in excess of US$2,500,000 or which, when aggregated with any other Environmental Claim in relation to the Vessel and
|
|
(e)
|
there has been no Release of Hazardous Materials by or in respect of the Vessel which could lead to an Environmental Claim in relation to the Vessel or its operations in excess of US$2,500,000 or which, when aggregated with any other Environmental Claim in relation to the Vessel or its operations, exceeds US$10,000,000; and
|
|
(f)
|
to the best of the Owner's knowledge and belief (having made due inquiry), the Charterer has obtained and is in compliance with all Environmental Approvals required of a Charterer in connection with use of the Vessel, and the Charterer is in compliance in all material respects with all Environmental Laws to the extent relating to the offshore lease blocks in which the Vessel will operate pursuant to a Drilling Charter.
|
|
(a)
|
Subject to Permitted Liens and any rights of the Charterer under a Drilling Charter, the Owner is the sole legal and beneficial owner entitled to the Security Assets over which it has or will create any Security Interest pursuant to the Security Documents to which it is or will be a party and there is no agreement or arrangement, other than in the DPP, under which it is obliged to share any proceeds of or derived from such Security Assets with any third party.
|
|
(b)
|
Each Security Document to which it is or will be a party creates or will create first priority security interests of the type described.
|
|
(a)
|
The Owner or the Bareboat Charterer are not unable or deemed unable, does not admit and has not admitted its inability to pay its debts and has not suspended making payments on any of its debts.
|
|
(b)
|
The Owner or the Bareboat Charterer by reason of actual or anticipated financial difficulties has not commenced, and does not intend to commence, negotiations with one or more of its creditors with a view to rescheduling any of its Financial Indebtedness.
|
|
(c)
|
The value of the assets of the Owner or the Bareboat Charterer is not less than its liabilities (taking into account contingent and prospective liabilities).
|
|
(d)
|
No moratorium has been declared in respect of any indebtedness of the Owner or the Bareboat Charterer during the period of six months commencing on the date this representation is made or deemed to be repeated pursuant to Clause 14.30(a) (Times for making representations).
|
|
(a)
|
The entry into by it of each Transaction Document to which it is a party constitutes, and the exercise by it of its rights and performance of its obligations under each such Transaction Document will constitute, private and commercial acts performed for private and commercial purposes.
|
|
(b)
|
It will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in its jurisdiction of incorporation in relation to any Transaction Document.
|
|
(a)
|
It is not necessary under the laws of its jurisdiction of incorporation:
|
|
(i)
|
in order to enable a Finance Party to enforce its rights under any Finance Document; or
|
|
(ii)
|
by reason of the entry into of any Finance Document or the performance by it of its obligations under any Finance Document,
|
|
(b)
|
No Finance Party will be deemed to be resident, domiciled or carrying on business in its jurisdiction of incorporation by reason only of the entry into, performance and/or enforcement of any Finance Document.
|
|
(a)
|
Its:
|
|
(i)
|
irrevocable submission under this Agreement to the jurisdiction of the courts of England;
|
|
(ii)
|
agreement that this Agreement is governed by English law; and
|
|
(iii)
|
agreement not to claim any immunity to which it or its assets may be entitled, are legal, valid and binding under the laws of its jurisdiction of incorporation.
|
|
(b)
|
Any judgment obtained in England will be recognised and be enforceable by the courts of its jurisdiction of incorporation, subject to any statutory or other conditions of such jurisdiction.
|
|
(a)
|
Except as expressly contemplated by the Transaction Documents, neither the Owner nor the Bareboat Charterer has traded or carried on any business since the date of its incorporation.
|
|
(b)
|
It does not have any Subsidiaries, other than the Bareboat Charterer and the Bareboat Charterer does not have any Subsidiaries.
|
|
(c)
|
Neither the Owner or the Bareboat Charterer is a party to any agreement other than the Transaction Documents, other than agreements of a non-material and administrative only nature and which will not prejudice the Finance Parties' interests in the Transaction Documents and the Vessel.
|
|
(a)
|
Neither the Owner, the Bareboat Charterer, the Parent, the Parent Shareholder nor Ocean Rig or any of their respective parents, subsidiaries or affiliates is a division, bureau, office, agency, department, committee or political subdivision of the jurisdiction of its incorporation or any other sovereign jurisdiction.
|
|
(b)
|
Neither the Owner, the Bareboat Charterer, the Parent, the Parent Shareholder nor Ocean Rig is engaged in:
|
|
(i)
|
the retailing, wholesaling, trading or importing of goods or services for or with residents of the jurisdiction of its incorporation;
|
|
(ii)
|
any extractive industry in the jurisdiction of its incorporation;
|
|
(iii)
|
any regulated professional service activity in the jurisdiction of its incorporation;
|
|
(iv)
|
the export of any commodity or goods manufactured, processed, mined or made in the jurisdiction of its incorporation; or
|
|
(v)
|
the ownership of real property in its jurisdiction of incorporation.
|
|
(c)
|
Neither the Owner, the Bareboat Charterer, the Parent, the Parent Shareholder nor Ocean Rig is doing business in the jurisdiction of its incorporation, except that each of the Owner, the Bareboat Charterer, the Parent, the Parent Shareholder or Ocean Rig may have its registered office in the jurisdiction of its incorporation and maintain its agent there.
|
|
(a)
|
The representations and warranties set out in this Clause 14 are made by the Owner on the date of this Agreement and shall be deemed to be repeated on each Utilisation Date and each date during the Post-Completion Period.
|
|
(b)
|
When a representation and warranty is repeated, it is applied to the circumstances existing at the time of repetition.
|
|
(c)
|
The representations and warranties set out in this Clause 14 relating to the Bareboat Charterer apply in relation to the Bareboat Charterer only during the Bareboat Charter Period.
|
|
(a)
|
The Owner must supply to the Facility Agent, in electronic form by email attachment or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), its audited financial statements for each of its financial years ending after the date of this Agreement.
|
|
(b)
|
The Owner shall procure that Ocean Rig shall supply to the Facility Agent its audited consolidated financial statements for each of its financial years ending after the date of this Agreement.
|
|
(c)
|
The Owner must supply to the Facility Agent, in electronic form by email attachment or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), its interim unaudited financial statements for each quarter of each financial year ending after the date of this Agreement.
|
|
(d)
|
The Owner shall procure that Ocean Rig, and during the Bareboat Charter Period the Bareboat Charterer, shall supply to the Facility Agent its interim unaudited financial statements for each quarter of each financial year ending after the date of this Agreement.
|
|
(e)
|
All audited financial statements of the Owner and consolidated financial statements of Ocean Rig must be supplied as soon as they are available and in any event within 150 days of the end of the relevant financial period and all unaudited financial statements for each quarter must be supplied as soon as they are available and in any event within 60 days of the end of each relevant financial period.
|
|
(a)
|
The Owner must ensure that each set of financial statements supplied under Clause 15.1 of this Agreement fairly represents the relevant parties financial condition as at the date to which those financial statements were drawn up.
|
|
(b)
|
The Owner must notify the Facility Agent of any change to the basis on which the audited financial statements are prepared.
|
|
(c)
|
If requested by the Facility Agent, the Owner must supply or procure that the following are supplied to the Facility Agent:
|
|
(i)
|
a full description of any change notified under paragraph (b) above; and
|
|
(ii)
|
sufficient information to enable the Facility Agent to make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and its most recent audited financial statements delivered to the Facility Agent under this Agreement.
|
|
(d)
|
If requested by the Facility Agent, the Owner must enter into discussions for a period of not more than 30 days with a view to agreeing to any amendments required to be made to this Agreement to place the Facility Agent in the same position as it would have been in if the change had not happened.
|
|
(e)
|
If no agreement is reached under paragraph (d) above on the required amendments to this Agreement, the Owner shall ensure that its auditors or, as the case may be, the Owner specifies those amendments; the certificate of the auditors will be, in the absence of manifest error, binding on all the Parties.
|
|
(a)
|
The Owner must supply to the Facility Agent, in electronic form by email attachment or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), a draft Annual Budget for each financial year within 14 days of its approval by the board of directors of the Owner and at least one month prior to the start of the relevant financial year, such budget to be considered and, if agreed by the Majority Lenders, approved in writing by the Facility Agent (acting reasonably) within 21 days of receipt following which the draft Annual Budget shall become the Annual Budget for the purposes of this Agreement. For this purpose if any Lender fails to respond to a request to agree any such draft within 21 days it shall be deemed to have approved it.
|
|
(b)
|
In the event any draft Annual Budget is not approved by the Facility Agent, the Facility Agent and the Owner shall consult and agree a revised Annual Budget. If a revised Annual Budget is not agreed within 30 days, the Facility Agent (acting on the instructions of the Majority Lenders) and the Owner shall agree to appoint a suitable expert to resolve any disputes they may have in respect of the Annual Budget. If the Facility Agent and Owner can not agree on an expert, the Facility Agent will apply to the London Maritime Arbitrators Association and the President of the London Marine Arbitrators Association shall appoint an expert on their behalf. In each case, the written determination of such expert in respect of any dispute, addressed to the Facility Agent and the Owner, shall (except in the case of manifest error) be final and binding.
|
|
(c)
|
Until a revised Annual Budget has been agreed between the Owner and the Facility Agent in accordance with this Clause 15.3, the amount:
|
|
(i)
|
prior to, or after the expiry of, the Bareboat Charter Period of any Earnings to be transferred from the Proceeds Account to the Operating Expenses Account or, as the case may be, the CAPEX Account; or
|
|
(ii)
|
during the Bareboat Charter Period of any Bareboat Charterer Earnings to be transferred from the Bareboat Charterer Proceeds Account to the Bareboat Charterer OPEX Account, or as the case may be, the Bareboat Charterer CAPEX Account,
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|
(d)
|
The Owner must promptly supply to the Technical Adviser, in electronic form by email attachment or hard copy, quarterly (or if the Facility Agent decides, in consultation with the Owner, that a monthly report is needed, monthly) technical reports (in the Pre-Completion Period) and quarterly operating reports (in the Post-Completion Period) in form and substance satisfactory to the Technical Adviser together with all such other information and documents which the Technical Adviser reasonably requires to perform its Workscope and its obligations under the Technical Proposal.
|
|
(e)
|
The Owner must procure that the Builder will give the Technical Adviser access to perform periodic visits to the premises of the Builder and the Builder's subcontractors in order to
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|
(a)
|
copies of all documents despatched by it, and until the end of the Bareboat Charter Period the Bareboat Charterer, to its or their creditors (other than trade creditors) generally or any class of them at the same time as they are despatched;
|
|
(b)
|
copies of all reports provided to the Owner, or during the Bareboat Charter Period to the Bareboat Charterer, by the Manager pursuant to the Management Agreement, in each case, within five (5) Business Days of receipt of such report by the Owner and if, in the opinion of the Facility Agent (acting reasonably), any additional technical report is necessary, the Owner will procure such report;
|
|
(c)
|
as soon as reasonably practicable on becoming aware of them, details of any litigation, arbitration or administrative proceedings which are current, pending or, to the best of its knowledge and belief, threatened against it, or until the end of the Bareboat Charter Period the Bareboat Charterer, and which, in each case, would have a Material Adverse Effect (in the opinion of the Facility Agent acting on the instructions of the Majority Lenders);
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|
(d)
|
as soon as reasonably practicable on request, such further information, in electronic form by email attachments or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders), regarding the financial condition and operations of the Owner or until the end of the Bareboat Charter Period the Bareboat Charterer or regarding any matter relevant to, or to any provision of, a Finance Document as the Facility Agent may reasonably request;
|
|
(e)
|
as soon as reasonably practicable on the Owner, or during the Bareboat Charterer period the Bareboat Charterer, becoming aware of them, details of any event or circumstance which is a Force Majeure Event;
|
|
(f)
|
promptly on the Owner, or during the Bareboat Charterer period the Bareboat Charterer, becoming aware of them, details of any event which has a Material Adverse Effect;
|
|
(g)
|
as soon as they are available, copies of any notice of default, termination, material dispute or claim (including notices provided by the Charterer under the terms of a Drilling Charter)
|
|
(h)
|
as soon as they are available, copies of any notice of default, termination or material claim made against it, or during the Bareboat Charter Period the Bareboat Charterer, under the Management Agreement together with details of any action it, or during the Bareboat Charter Period the Bareboat Charterer, proposes to take in relation to the same and, upon becoming aware of the same, notification of any strikes or industrial action taken or proposed to be taken by the Manager or its employees, subcontractors or personnel from time to time which has or may reasonably be expected to have a Material Adverse Effect;
|
|
(i)
|
promptly on becoming aware of them, details of any damage to or destruction of the Vessel or any breakdown of any part of the Vessel, where the cost of repair or reinstatement is likely to exceed US$10,000,000 or where the cumulative cost of repair or reinstatement of damage to or destruction of the Vessel during the previous six months is likely to exceed US$10,000,000;
|
|
(j)
|
promptly on the Owner, or during the Bareboat Charter Period the Bareboat Charterer, becoming aware of them, details of any proposal for an amendment or waiver of a Related Contract other than amendments or waivers of an administrative or non-material nature; and
|
|
(k)
|
upon request by the Facility Agent, copies of all Transaction Authorisations (if any) obtained by it or until the end of the Bareboat Charter Period the Bareboat Charterer.
|
|
(a)
|
The Owner must promptly supply to the Facility Agent, in electronic form by email attachments or hard copy (and, if in hard copy, in sufficient copies for all of the Lenders) any reports received in relation to the construction of the Vessel provided by the Builder pursuant to Article IV paragraph 7 of the Shipbuilding Contract.
|
|
(b)
|
The Owner must promptly, upon the earlier of (i) becoming aware of the same and (ii) the time when a prudent owner ought reasonably to have become aware of the same, notify the Facility Agent of:
|
|
(i)
|
any breach (or attempted breach) of safety or security at the premises of the Builder
|
|
which has a Material Adverse Effect;
|
|
(ii)
|
any material claim it may have under any indemnity or provision for any Liquidated Damages Payments under the Shipbuilding Contract;
|
|
(iii)
|
any reduction in hire payable under a Drilling Charter on account of a delay in delivery of the Vessel to the Charterer; and
|
|
(iv)
|
any change or further change to the Scheduled Delivery Date.
|
|
(a)
|
All financial and other information provided by the Owner under or in connection with any Finance Document at the time when given will be true and not misleading in any material respect and will not omit any material fact.
|
|
(b)
|
All financial and other information provided by third parties on behalf of the Owner under or in connection with any Finance Document at the time when given will, to the best of the Owner's knowledge and belief, be true and not misleading in any material respect and will not omit any material fact.
|
|
(a)
|
At least 15 Business Days prior to each Repayment Date, the Owner shall deliver a duly completed Calculation Certificate to the Facility Agent signed by two of its authorised signatories on its behalf:
|
|
(i)
|
setting out the Debt Service Cover Ratio for the most recent Calculation Period; and
|
|
(ii)
|
certifying no Default, Mandatory Prepayment Event or Potential Mandatory Prepayment Event is outstanding or, if a Default, Mandatory Prepayment Event or Potential Mandatory Prepayment Event is outstanding, specifying the Default, Mandatory Prepayment Event or Potential Mandatory Prepayment Event outstanding and the steps, if any, being taken to remedy it.
|
|
(b)
|
Within seven Business Days of receiving a Calculation Certificate, the Facility Agent must notify the Owner whether it agrees with the Debt Service Cover Ratio calculation set out in that Calculation Certificate, otherwise the Facility Agent will be deemed to have accepted such Debt Service Cover Ratio calculation.
|
|
(c)
|
If the Facility Agent does not agree with the Debt Service Cover Ratio calculation set out in a Calculation Certificate, the Facility Agent and the Owner shall consult, in good faith, to agree the Debt Service Cover Ratio calculation as soon as possible. If the Debt Service Cover Ratio is not agreed within ten Business Days of notification by the Facility Agent
|
|
(a)
|
The Owner must promptly on the request of any Finance Party supply to that Finance Party any documentation or other evidence which is reasonably requested by that Finance Party (whether for itself, on behalf of any Finance Party or any prospective new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of all applicable know your customer requirements.
|
|
(b)
|
Each Lender must promptly on the request of the Facility Agent supply to the Facility Agent any documentation or other evidence which is reasonably required by the Facility Agent to carry out and be satisfied with the results of all know your customer requirements.
|
|
(a)
|
obtain, maintain and comply with the terms; and
|
|
(b)
|
supply certified copies to the Facility Agent,
|
|
(a)
|
The Owner must not and shall procure that during the Bareboat Charter Period the Bareboat Charterer shall not (other than insofar as the same may be created or effected under the
|
|
(i)
|
sell, transfer or otherwise dispose of all or a substantial part of its assets;
|
|
(ii)
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
|
(iii)
|
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
|
(iv)
|
enter into any other preferential arrangement having a similar effect, in circumstances where the transaction might have a Material Adverse Effect.
|
|
(b)
|
Paragraph (a) does not apply to any disposal:
|
|
(i)
|
made in the ordinary course of trading on arm's length terms;
|
|
(ii)
|
of obsolete assets; or
|
|
(iii)
|
of assets (other than the Vessel) in exchange for other assets comparable or superior as to type, value and quality.
|
|
(a)
|
must not engage in any business other than the direct ownership, operation and chartering of the Vessel or any business incidental thereto;
|
|
(b)
|
must not cease to carry on its business;
|
|
(c)
|
must not own or acquire any asset other than the Vessel or any asset incidental to the ownership, operation and chartering of the Vessel; or
|
|
(d)
|
must not incur any Financial Indebtedness other than:
|
|
(i)
|
Financial Indebtedness incurred or permitted under the Finance Documents;
|
|
(ii)
|
any Financial Indebtedness by way of borrowing from Ocean Rig for the purpose only of posting any cash collateral which the Owner may from time to time be required to post under any of the Swap Agreements provided that any such Financial Indebtedness is fully subordinated to the rights and interests of the Finance Parties under the Finance Documents; or
|
|
(iii)
|
any Financial Indebtedness otherwise approved by the Facility Agent (acting on the instructions of the Majority Lenders); and
|
|
(e)
|
shall procure that until the end of the Bareboat Charter Period the Bareboat Charterer does not:
|
|
(i)
|
engage in any business other than the operation and charterering of the Vessel or any business incidental thereto;
|
|
(ii)
|
cease to carry on its business;
|
|
(iii)
|
own or acquire any assets other than any asset incidental to the operation and chartering of the Vessel;
|
|
(iv)
|
incur any Financial Indebtedness other than Financial Indebtedness incurred or permitted under the Finance Documents.
|
|
(a)
|
The Owner shall procure that the Bareboat Charterer does not, make any Distributions, provided that during the Bareboat Charter Period the Bareboat Charterer may make Distributions of funds released from the Bareboat Charterer Proceeds Account pursuant to Clause 12.3(d) (Bareboat Charterer Proceeds Account) above.
|
|
(b)
|
The Owner shall not make any Distributions, except following an Owner Earnings Deposit Date, provided that:
|
|
(i)
|
the relevant Primary Transfers in respect of that Owner Earnings Deposit Date have been made in accordance with Clause 12.4(a) above; and
|
|
(ii)
|
the balance standing to the credit of the Debt Service Reserve Account is in an amount equal to at least the aggregate of (A) the Required DSRA Balance at that time and (B) Additional Reserve Transfers in an amount which when aggregated with the Sister Additional Reserve Transfers is in an amount equal to the Additional Reserve Amount; and
|
|
(iii)
|
no Default has occurred and is continuing, or will result from the making of any such Distribution.
|
|
(a)
|
The Owner shall not, and shall procure that prior to the end of the Bareboat Charter Period the Bareboat Charterer shall not, enter into any amalgamation, demerger, merger or reconstruction that might have a Material Adverse Effect.
|
|
(b)
|
Save in the ordinary course of business, the Owner must not incur or allow to be outstanding any guarantee (including an indemnity or other assurance against loss) (a Relevant Guarantee) by it in respect of any person and any Relevant Guarantee which would otherwise be permitted under this paragraph (b) will not be permitted if the Owner's obligations under the Relevant Guarantee are secured by any of the Security Assets (save to the extent such security constitutes a Permitted Lien).
|
|
(c)
|
The Owner must not, and shall procure that prior to the end of the Bareboat Charter Period the Bareboat Charterer shall not, be the creditor in respect of Financial Indebtedness other than:
|
|
(i)
|
advances to crew;
|
|
(ii)
|
in connection with any spares or pooling arrangements (approved by the Facility Agent (acting on the instructions of the Majority Lenders acting reasonably)) or sale of equipment relating to the Vessel entered into by the Owner, or the Bareboat Charterer as relevant, in the ordinary course of its business;
|
|
(iii)
|
deposits placed with banks or the providers of goods and services entered into by the Owner, or the Bareboat Charterer as relevant, in the ordinary course of its business; or
|
|
(iv)
|
in relation to the Owner only, pursuant to its obligations to a Swap Bank under a Swap Agreement.
|
|
(d)
|
The Owner must not, and shall procure that prior to the end of the Bareboat Charter Period the Bareboat Charterer shall not, create any Subsidiary provided that, without prejudice to the provisions of Clauses 16.17 and 16.22 or any other provision of the Finance Documents, the Owner may create Subsidiaries, the sole purpose of those Subsidiaries being to act as the operating company and/or the bareboat charterer of the Vessel, as a means for the Owner to utilise any such Subsidiaries to operate for and/or charter the Vessel to a Charterer.
|
|
(a)
|
without prejudice to Clause 16.12(a), shall procure that the Mortgage and any other security conferred by it or the Bareboat Charterer under any Security Document is registered as a first priority interest with the relevant authorities within the period prescribed by Applicable Law and is maintained and perfected with the relevant authorities;
|
|
(b)
|
shall at its own cost do all that it can to ensure that any Finance Document validly creates the obligations and Security Interests which it purports to create; and
|
|
(c)
|
without limiting the generality of paragraph (a) above, shall at its own cost promptly register, file, record or enrol any Finance Document with any relevant court or authority, pay any stamp, registration or similar tax payable in respect of any Finance Document, give any notice or take any other step which, in the reasonable opinion of the Facility Agent, is or has become necessary 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.
|
|
(a)
|
procure and maintain, with effect from the Delivery Date, the valid and effective permanent registration of the Vessel under the flag of the Marshall Islands or such other flag as is satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders (acting in good faith but otherwise in their absolute discretion)), and shall ensure nothing is done or omitted by the Owner, the Bareboat Charterer or the Manager and shall use reasonable endeavours to ensure that nothing is done or omitted to be done by any third party by which the registration of the Vessel would or might be defeated or imperilled;
|
|
(b)
|
not change the name or port of registration of the Vessel without the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders) (such consent not to be unreasonably withheld or delayed); and
|
|
(c)
|
ensure that the Vessel complies in all respects with Applicable Laws from time to time applicable to vessels registered under the laws and flag of the Marshall Islands or such other flag (an Alternative Flag) under which the Vessel may be registered from time to time in accordance with this Agreement, provided that if at any time an Alternative Flag is not a signatory to all International Maritime Organization Assembly resolutions and regulations to which the Marshall Islands is a signatory, then the Owner shall ensure, and shall procure that the Bareboat Charterer and the Manager ensure, that the Alternative Flag issues a certificate of equivalency of the Vessel in respect of each such International Maritime Organization Assembly resolution and regulation.
|
|
(a)
|
maintain and preserve the Vessel in good working order and repair (ordinary wear and tear excepted), seaworthy, in efficient operating condition and, in any event, to a standard at least equivalent to vessels managed and/or operated by the Manager and Ocean Rig's group and the recommendations of the Builder;
|
|
(b)
|
ensure that the Vessel is surveyed from time to time as required by the Classification Society in which the Vessel is entered at that time;
|
|
(c)
|
maintain the highest classification of the Vessel with the Classification Society or, if such classification is not available, with the highest equivalent classification in another internationally recognised classification society of like standing acceptable to the Facility Agent (acting on the instructions of the Majority Lenders), free of all overdue requirements and overdue recommendations of that classification society or register;
|
|
(d)
|
maintain and keep up to date the Technical Records in English and in compliance with all Applicable Laws relating to the Vessel and the requirements of the Classification Society;
|
|
(e)
|
maintain and keep the Software Records up to date;
|
|
(f)
|
comply in all material respects with all Software Licences and use its best endeavours to procure that all Software Licenses are capable of assignment;
|
|
(g)
|
procure that all repairs to or replacement of any damaged, worn or lost parts or equipment shall be effected in such manner (both as regards workmanship and quality of materials) as not to materially diminish the value of the Vessel or cause damage to the Environment;
|
|
(h)
|
not remove any material part of the Vessel, any part or any other material item of equipment installed on the Vessel unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Finance Parties, and becomes on installation on the Vessel the property of the Owner and subject to the security constituted by the relevant Security Document(s) provided that, for the avoidance of doubt, the Owner or the Bareboat Charterer may install and remove equipment owned by a third party if the equipment can be removed without any risk of damage to the Vessel or the Environment and does not affect the class, flag or custody transfer certification; and
|
|
(i)
|
without prejudice to paragraph (h) not without prior written consent of the Facility Agent not to be unreasonably withheld (acting on the instructions of the Majority Lenders), cause or permit to be made any substantial change in the structure, machinery, equipment, control systems, type or performance characteristics of the Vessel other than modifications required by the Classification Society or Applicable Law.
|
|
(a)
|
operate the Vessel and cause the Vessel to be operated in a manner consistent in all material respects with any Applicable Law;
|
|
(b)
|
not cause or permit the Vessel to trade with, or within the territorial waters of, any country in which her safety may be imperilled by exposure to terrorism;
|
|
(c)
|
not cause or permit the Vessel to be employed in any manner which will or may give rise to any reasonable degree of likelihood that the Vessel would be liable to arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize;
|
|
(d)
|
not cause or permit the Vessel to be employed in any trade or business which is forbidden by Applicable Law or is illicit or in carrying goods which are illicit or prohibited under any Applicable Law;
|
|
(e)
|
in the event of hostilities in any part of the world (whether war be declared or not) not cause or permit the Vessel to be carrying any contraband goods and/or trading in any zone after it has been declared a war zone by any authority or by any of the Vessel's war risks Insurers unless the Vessel's Insurers shall have confirmed to the Owner that the Vessel is held covered under the Obligatory Insurances or under a government scheme that gives comparable protection for the voyage(s) in question; and
|
|
(f)
|
not charter the Vessel with any foreign country or national of any foreign country which is the subject of sanctions imposed by the United Nations or is specified by legislation or
|
|
(a)
|
pay and discharge all obligations and liabilities whatsoever which have given or may give rise to liens (other than Permitted Liens) on or claims enforceable against the Vessel and take all reasonable steps to prevent a threatened arrest of the Vessel;
|
|
(b)
|
notify the Facility Agent promptly in writing of the levy or other distress on the Vessel or its arrest, detention, seizure, condemnation as prize, compulsory acquisition or requisition for title or use and (save in the case of compulsory acquisition or requisition for title or use or any other event that would, with the passage of time, constitute a Total Loss of the Vessel) obtain the release of the Vessel within twenty-one (21) days;
|
|
(c)
|
pay and discharge when due all dues, taxes, assessments, governmental charges, fines and penalties lawfully imposed on or in respect of the Vessel, the Bareboat Charterer or the Owner except those which are being disputed in good faith by appropriate proceedings (and for the payment of which adequate reserves or security are at the relevant time maintained or provided or for which indemnity or liability insurance cover for at least the full amount in dispute has been obtained by the Owner, or as the case may be, by the Bareboat Charterer, from underwriters or insurance companies approved by the Facility Agent (acting on the instructions of the Majority Lenders acting reasonably)) and provided that the continued existence of such dues, taxes, assessments, governmental charges, fines or penalties does not give rise to any reasonable degree of likelihood that the Vessel would be liable to arrest, requisition, confiscation, forfeiture, seizure, destruction or condemnation as prize; and
|
|
(d)
|
pay and discharge all other obligations and liabilities whatsoever in respect of the Vessel and the Obligatory Insurances except those which are being disputed in good faith by appropriate proceedings (and for the payment of which adequate reserves or security are at the relevant time maintained or provided or for which indemnity or liability insurance cover for at least the full amount in dispute has been obtained by the Owner, or as the case may be, by the Bareboat Charterer, from underwriters or insurance companies approved by the Facility Agent (acting on the instructions of the Majority Lenders (acting reasonably)) and provided that the continued existence of those obligations and liabilities in respect of the Vessel and the Obligatory Insurances does not give rise to any reasonable degree of likelihood that the Vessel would be liable to arrest, requisition, confiscation, forfeiture, seizure, destruction or
|
|
(a)
|
exercise its rights and comply with its material obligations under each Finance Document and Related Contract to which it is a party;
|
|
(b)
|
not without the consent of the Facility Agent (acting on the instructions of the Majority Lenders acting reasonably):
|
|
(i)
|
make or enter into (and shall procure that Ocean Rig, the Bareboat Charterer and the Manager shall not make or enter into) any amendments, changes or variations to, or assign, transfer, terminate, suspend or abandon any of the Related Contracts (and to the extent necessary it will withhold its consent to any such amendment, assignment, transfer, termination, suspension or abandonment) other than an amendment, change or variation of a non-material or administrative nature (and, for the avoidance of doubt, any amendments, changes or variations to the Shipbuilding Contract which would or may delay the Delivery Date by 3 months or more would in all cases be deemed a "material" amendment, change or variation);
|
|
(ii)
|
take any action, enter into any document or agreement or omit to take any action or to enter into any document or agreement which a reasonable shipowner in the position of the Owner could reasonably be expected to know should be taken or entered into which, in any such case, would cause any Related Contract to be terminated or to cease to remain in full force and effect and shall use all reasonable endeavours to procure that each other party to any Related Contract does not take any action, enter into any document or agreement or omit to take any action or to enter into any document or agreement which would, or could reasonably be expected to, cause any Related Contract to cease to remain in full force and effect;
|
|
(iii)
|
release the Builder or the Charterer from any of its material obligations under the Shipbuilding Contract or the Drilling Charter, as the case may be; or
|
|
(iv)
|
permit (and will procure that no Other Owner shall permit) any amendments, changes or variations to, or assignments, transfers, termination, suspension or abandonment of any of the Other Shipbuilding Contract (and to the extent necessary it will procure the Other Owner will withhold its or their consent to any such amendment, change, variation, assignment, transfer, termination, suspension or abandonment) other than an amendment of a non-material or administrative nature; or
|
|
(v)
|
permit, or agree to, or effect under the Bareboat Charter, any adjustment to the amount of the Bareboat Charterhire, other than adjustments as a result of the annual adjustment mechanism in article 6.1 of the Bareboat Charter and which are set out in the Annual Budget; and
|
|
(c)
|
not exercise its rights under Article I paragraph 5 of the Shipbuilding Contract to approve any relevant subcontractor under the Shipbuilding Contract without the Facility Agent's (acting on the instructions of the Majority Lenders) prior written consent.
|
|
(a)
|
comply in all material respects with all applicable Environmental Laws and Environmental Approvals including, without limitation, requirements relating to the establishment of financial responsibility (and shall require that all Environmental Affiliates of the Owner, the Bareboat Charterer and the Manager comply in all material respects with all applicable Environmental Laws and obtain and comply with all required Environmental Approvals, insofar as such Environmental Laws and Environmental Approvals relate to the Vessel or her operation or her carriage of cargo);
|
|
(b)
|
comply in all material respects with their obligations under and in accordance with health and safety requirements of any Drilling Charter; and
|
|
(c)
|
promptly upon becoming aware notify the Facility Agent of:
|
|
(i)
|
any Environmental Claim in excess of US$2,500,000 which is current or, to its knowledge, pending or threatened against it or any Environmental Affiliate relating to the Vessel or her operation or her carriage of cargo; or
|
|
(ii)
|
any fact or circumstances reasonably likely to give rise to an Environmental Claim in excess of US$2,500,000 against it or any Environmental Affiliate relating to the Vessel or her operation or her carriage of cargo; or
|
|
(iii)
|
any suspension, revocation or modification of any Environmental Approval obtained by the Owner, the Bareboat Charterer, the Manager or the Charterer relating to the Vessel or her operation or her carriage of cargo; or
|
|
(iv)
|
any Release of Hazardous Materials by or in respect of the Vessel or caused by the Vessel or its operations which could lead to an Environmental Claim in excess of US$250,000,
|
|
(a)
|
The Owner shall upon becoming aware of the same, and shall procure that the Bareboat Charterer during the Bareboat Charter and the Manager shall upon the earlier of (i) becoming aware of the same and (ii) the time when a prudent manager ought reasonably to have become aware of the same, at all times after the Delivery Date:
|
|
(i)
|
promptly notify the Facility Agent of the occurrence of any accident, casualty or other event which has caused or resulted in or may cause or result in the Vessel being or becoming a Total Loss;
|
|
(ii)
|
promptly notify the Facility Agent of any requirement or recommendation made by any Insurer or the Classification Society or by any competent authority which is not
|
|
(iii)
|
promptly notify the Facility Agent of any intended dry-docking of the Vessel (whether routine or otherwise);
|
|
(iv)
|
promptly notify the Facility Agent of any claim for a material breach of the ISM Code being made in connection with the Vessel or its operation;
|
|
(v)
|
promptly notify the Facility Agent of any claim for a material breach of the ISPS Code being made in connection with the Vessel or its operation;
|
|
(vi)
|
give to the Facility Agent from time to time on request such information, in electronic form by email attachments or hard copy, as the Facility Agent may reasonably require regarding the Vessel, its employment, position and engagements or regarding the Obligatory Insurances, and shall without undue delay send copies of all notices sent or received by it, Ocean Rig, the Bareboat Charterer, or the Manager under the terms of the OCR Time Charter, the Bareboat Charter or the Petrobras Charter (except for communications in the ordinary course of business);
|
|
(vii)
|
provide the Facility Agent with copies of the classification certificate of the Vessel and of all periodic damage or survey reports on the Vessel which the Facility Agent may reasonably request;
|
|
(viii)
|
promptly notify the Facility Agent when a condition of class is applied by the Classification Society;
|
|
(ix)
|
promptly notify the Facility Agent if the Vessel is detained by any port, governmental or quasi-governmental authority;
|
|
(x)
|
promptly notify the Facility Agent if the flag state or the Classification Society refuse to issue or withdraw any trading certification;
|
|
(xi)
|
promptly notify the Facility Agent of any fire on board the Vessel which requires the use of fixed fire systems;
|
|
(xii)
|
promptly notify the Facility Agent of any collision or grounding of the Vessel;
|
|
(xiii)
|
promptly notify the Facility Agent if the Vessel is taken under tow other than in respect of the routine operation of the Vessel;
|
|
(xiv)
|
promptly notify the Facility Agent of any death or serious injury to any person which occurs on board the Vessel;
|
|
(xv)
|
subject to any applicable restriction under a Drilling Charter give to the Facility Agent and its duly authorised representatives (at their own risk and expense) reasonable access to the Vessel but without interruption to her use or operation for the purpose of conducting on board inspections and/or surveys of the Vessel and the Technical Records;
|
|
(xvi)
|
if the Facility Agent reasonably believes an Event of Default may have occurred and is continuing, procure that the Facility Agent and its duly authorised representatives
|
|
(xvii)
|
if the Facility Agent reasonably believes an Event of Default may have occurred and is continuing, furnish to the Facility Agent from time to time upon reasonable request certified copies of the ship's log in respect of the Vessel.
|
|
(b)
|
The Owner shall, and shall procure that the Bareboat Charterer during the Bareboat Charter Period, and the Manager shall, upon becoming aware of the same, during the Pre-Delivery Period, notify the Facility Agent of any accident, casualty or other event which has caused or resulted in or may cause or result in the Vessel as it is then constructed becoming a Total Loss or being reasonably considered as beyond economic repair.
|
|
(a)
|
The Owner shall procure that the proceeds from a sale or Total Loss of the Vessel (and during the Pre-Delivery Period, any proceeds from the Vessel under construction or buyer's supplies being deemed a total loss or being reasonably considered beyond economic repair) shall promptly upon receipt by the Owner or the Bareboat Charterer, be paid to the Security Trustee for application in accordance with clause 10 of the DPP.
|
|
(b)
|
For so long as the Owner or the Bareboat Charterer holds any such proceeds as referred to in paragraph (a), it shall, and the Owner shall procure that the Bareboat Charterer shall, do so on trust for the Security Trustee.
|
|
(c)
|
The Owner will not sell or agree to sell the Vessel and will procure that the Sister Owner will not sell or agree to sell the Sister Vessel unless the Owner can demonstrate to the Facility Agent to its satisfaction that:
|
|
(i)
|
the Owner will upon such sale have sufficient funds to repay the Loans in full and all other amounts outstanding hereunder in the case of the sale of the Vessel or under Clause 6.3 (Mandatory prepayment amount - Sister Vessel) in the case of a sale of the Sister Vessel; and
|
|
(ii)
|
in the case of the Sister Vessel, the Owner will upon such sale be in compliance with the Leverage Ratio.
|
|
(a)
|
The Owner shall not let, or permit to be let, the Vessel on demise, time, consecutive voyage or voyage charter for any period or to any person other than to a Charterer under a time charter party (a Drilling Charter) in terms satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) with an Approved Charterer and, other than in respect of the Petrobras Charter, with an Approved Rate.
|
|
For the purposes of this paragraph (a):
|
|
(i)
|
for a time charter period of 2 years or more (but less than 3 years), the daily rate on its own results in a minimum annual projected Net Cash Flow of US$116,000,000 and the minimum daily rate is US$545,000;
|
|
(ii)
|
for a time charter period of 3 years or more (but less than 5 years), the daily rate on its own results in a minimum annual projected Net Cash Flow of US$129,000,000 and the minimum daily rate is US$550,000; or
|
|
(iii)
|
for a time charter period of 5 years or more, the daily rate on its own results in a minimum annual projected Net Cash Flow of US$116,000,000 and the minimum daily rate is US$510,000,
|
|
(b)
|
The Owner shall procure that on or prior to the Petrobras Charter Novation the Bareboat Charterer enters into the Bareboat Charterer Petrobras Charter Assignment (and shall procure that any notices, and shall use best efforts to procure acknowledgements thereto ).
|
|
(c)
|
The Owner shall (i) at least twelve (12) months prior to the expiry date (howsoever
|
|
(i)
|
procure that a replacement Drilling Charter is entered into having a minimum term (excluding any optional extensions) of 2 years;
|
|
(ii)
|
execute a deed of assignment of time charter and earnings in substantially the same form as the Charter Assignment and shall procure that any notices, and shall use best efforts to procure that any acknowledgements, thereto are duly executed by the relevant parties to them; and
|
|
(iii)
|
provide a tax opinion from its tax advisers (which may be disclosed to the Finance Parties) in respect of potential withholding and income tax payable under the Transaction Documents in form and substance satisfactory to each of the Finance Parties.
|
|
(d)
|
The Owner shall not and in relation to the Petrobras Charter shall procure that Ocean Rig and the Bareboat Charterer shall not:
|
|
(i)
|
allow the Vessel to be sub-chartered by any Charterer without the consent of the Facility Agent not to be unreasonably withheld (acting on the instructions of the Majority Lenders); or
|
|
(ii)
|
permit any transfer of the Charterer's rights and/or obligations under a Drilling Charter without the prior written consent of the Facility Agent (acting on the instructions of all of the Lenders); or
|
|
(iii)
|
in relation to the Petrobras Charter consent to or approve any new Consortium Parties (as that term is defined in the Petrobras Charter) without the prior written consent of the Facility Agent (acting on the instructions of all of the Lenders); or3
|
|
(iv)
|
in relation to the Petrobras Charter, consent to any new work location for the Vessel outside of the United Republic of Tanzania without the prior written consent of the Facility Agent (acting on the instructions of all of the Lenders), or the Facility Agent only where the Lenders' position with regard to tax, cash flows or security is not materially affected.
|
|
(a)
|
In the event of the occurrence at any time during the Post-Completion Period of (i) one of the events described in Clauses 6.2(e) or 6.2(f) which would otherwise give rise to an immediate Mandatory Prepayment Event or (ii) an Event of Default set out in Clauses 18.6 (Insolvency), 18.7 (Insolvency proceedings), 18.8 (Creditors' process), 18.9 (Cessation of business), 18.10 (Failure to pay final judgment) and 18.11 (Material adverse change) in respect of the Charterer or the Manager only, then, subject to the conditions set out in Clause 16.23(b) below, no Mandatory Prepayment Event or Event of Default shall immediately arise and the Owner shall have the opportunity to cure the relevant default, breach or event (including by proposing a substitute charterer or manager) for a period of three (3) months from the date the relevant event or Event or Default occurs or, if later, the date that a prudent owner could reasonably be expected to have become aware of the occurrence of the relevant event or Event of Default (provided always that for the purposes of this paragraph (a), the Owner shall in any event be deemed to have become aware of the relevant event or Event of Default within thirty (30) days of the occurrence of such event or Event of Default) (the Cure Period);
|
|
(b)
|
The right of the Owner to effect a cure and the postponement of the relevant Mandatory Prepayment Event or Event of Default (as the case may be) pursuant to Clause 16.23(a) above shall be available only if:
|
|
(i)
|
there is no other Default existing at the time when the relevant event or Event of Default referred to in Clause 16.23(a) arises and no such other Default occurs at any time during the Cure Period; and
|
|
(ii)
|
any substitute charterer or manager and/or substitute charter or management agreement proposed by the Owner as the means of effecting a cure satisfies the terms and conditions of Clause 16.22 (in the case of a substitute charterer and/or charter) and the terms and conditions of Clause 16.24 (in the case of a substitute manager and/or management agreement); and
|
|
(iii)
|
the Owner procures that on the earlier of (i) the time at which Owner becomes aware of the occurrence of an Event of Default or the relevant event, or (ii) 30 days after the occurrence of an Event of Default or the relevant event referred to in Clause 16.23(a), there is deposited into the Debt Service Reserve Account such additional amount as will ensure that the balance standing to the credit of the Debt Service Reserve Account following such deposit is equal to at least the amount required to pay the aggregate amount of interest and principal repayments accruing under this Agreement during the period of nine (9) months following the date of such deposit. The Owner shall not be entitled to use any funds then standing to the credit of any of the Accounts to effect such deposit.
|
|
(c)
|
If the Owner or, as the case may be, the Bareboat Charterer proposes to enter into a substitute charter or substitute management agreement, the Owner shall and shall procure that the Bareboat Charterer shall, in relation to a substitute charter, comply fully with all of the provisions of Clause 16.22 and, in relation to a substitute management agreement, the Owner shall and shall procure that the Bareboat Charterer shall, upon the execution of the substitute management agreement, execute a security assignment of such substitute management agreement together with all notices and acknowledgements thereto all in the same form (mutatis mutandis) as the then existing security over the Management Agreement or otherwise in form and substance satisfactory to the Majority Lenders.
|
|
(d)
|
For the avoidance of doubt, should any of the conditions set out in Clause 16.23(b) not be, or cease to be, met, or should the Owner not effect a cure of the relevant breach, default or event within the Cure Period, the relevant Mandatory Prepayment Event or, as the case may be, Event of Default shall immediately arise and the Finance Parties shall be all of the rights flowing therefrom.
|
|
(e)
|
If the Owner effects a cure of the relevant breach, Event of Default or other event within the Cure Period pursuant to this Clause 16.23, the Owner may withdraw any such additional amount deposited into the Debt Service Reserve Account in accordance with Clause 16.23(b)(iii).
|
|
(a)
|
at all times comply, and be responsible for compliance by itself and by the Vessel, with the mandatory requirements of the ISM Code;
|
|
(b)
|
at all times after the Delivery Date ensure that the Vessel has a valid Safety Management Certificate (or, following delivery until a final certificate is issued, a valid interim Safety
|
|
(c)
|
promptly notify the Facility Agent of any actual or, upon becoming aware of the same, threatened withdrawal of an applicable Safety Management Certificate or Document of Compliance;
|
|
(d)
|
promptly notify the Facility Agent of the identity of the person ashore designated for the purposes of paragraph 4 of the ISM Code and of any change in the identity of that person; and
|
|
(e)
|
promptly upon becoming aware of the same notify the Facility Agent of the occurrence of any accident or major non-conformity requiring action under the ISM Code.
|
|
(a)
|
The Owner shall give to the Facility Agent and the Technical Adviser notice of any meetings of the Owner or the Owner's representatives with the Builder or between the Owner or the Owner's representatives and any Charterer or the Charterer's representatives where material divergence from the Specification (as defined in the Shipbuilding Contract) is being discussed. Following any such meeting, the Owner shall notify the Facility Agent and the Technical Adviser of the outcome of such meeting. Such advance notice and notice of the outcome shall be contained in the quarterly technical reports referred to in Clause 15.3(d).
|
|
(b)
|
The Owner shall make reasonable efforts to obtain the Builder's consent so that the Facility Agent (at the Facility Agent's own risk and expense) or its representative has a right to attend, in a capacity as an observer only, the shipyard on an occasional basis and to be present at the sea trials and first drill trial of the Vessel.
|
|
(c)
|
The Owner will give reasonable notice to the Facility Agent of the time and location of any of the meetings, trials and voyages referred to in paragraph (b) above.
|
|
(a)
|
Project milestone for Instalment Loan 2:
|
|
·
|
start of keel laying for Vessel
|
|
(c)
|
Project milestones for Delivery Loan:
|
|
·
|
tender of Vessel for Delivery
|
|
(a)
|
promptly file all Tax reports and returns required to be filed by it in any jurisdiction; and
|
|
(b)
|
promptly pay all Taxes or, if any Tax is being contested in good faith and by appropriate means, ensure an adequate reserve is set aside for payment of that Tax.
|
|
(a)
|
The Owner will not permit the Leverage Ratio from time-to-time to be lower than 125 per cent, such Leverage Ratio to be tested as provided in paragraph (c) below, provided that during the six month period prior to the expiry date (howsoever described) of any Drilling Charter (the Drilling Charter Final Period) the Owner will not permit the Leverage Ratio from time-to-time to be lower than 140 per cent.
|
|
(b)
|
If on any determination date the Leverage Ratio is less than 125 per cent or, during the Drilling Charter Final Period, 140 per cent, the Owner will immediately following a request of the Facility Agent to do so:
|
|
(i)
|
prepay such amount of the Loans as will ensure that the Leverage Ratio is not less than or equal to 125 per cent, or, during the Drilling Charter Final Period, 140 per cent; or
|
|
(ii)
|
provide or cause to be provided to the Facility Agent such additional funds into the Debt Service Reserve Account as is necessary to bring the Leverage Ratio equal to or not less than 125 per cent, or, during the Drilling Charter Final Period, 140 per cent; or
|
|
(iii)
|
provide such additional security, in all respects satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders), such that the Leverage Ratio is not less than or equal to 125 per cent, or, during the Drilling Charter Final Period, 140 per cent.
|
|
(c)
|
The Facility Agent shall be entitled to test such Leverage Ratio as of:
|
|
(i)
|
the Final Completion Date;
|
|
(ii)
|
each anniversary thereof;
|
|
(iii)
|
the first date of any Drilling Charter Final Period;
|
|
(iv)
|
upon the notice of the Sister Owner of its intention to sell a Vessel; and
|
|
(v)
|
at any time on notice from the Facility Agent after the occurrence of a Default which is continuing.
|
|
(d)
|
The Owner will procure a valuation on the basis described in the definition of Market Value on or before (but dated not more than thirty (30) days prior to) the date on which Leverage Ratio is to be calculated or in the case of paragraph (c) (i) promptly on demand and provide such valuation to the Facility Agent who will verify such valuation by reference to the information provided by the Owner.
|
|
(e)
|
The Owner will procure in favour of the Facility Agent and the Approved Brokers, all such information, as they may reasonably (having regard to the use and operation of the Vessel) require in order to effect such valuations.
|
|
(f)
|
All valuations shall be at the expense of the Owner.
|
|
(a)
|
provide the Facility Agent with full details of each current and/or proposed "Consortium Party" and each known and/or potential "Country" in which drilling operations will be conducted under the Petrobras Charter (as those terms are defined in the Petrobras Charter);
|
|
(b)
|
enter into and procure that all other relevant parties enter into such documentation as the Facility Agent (acting on the instructions of all of the Lenders) considers necessary or desirable (including, without limitation, security documentation and documentation to amend this Agreement) in order to effect any Petrobras Charter transfer and/or bareboat chartering arrangements required as a result of Ocean Rig (rather than the Owner) entering into the Petrobras Charter, without materially affecting the Lenders' position with regard to tax, cash flows, charterer credit or security;
|
|
(c)
|
provide and procure that all other relevant parties provide in favour of the Security Trustee, on behalf of the Secured Parties:
|
|
(i)
|
a deed of assignment of earnings in relation to the Petrobras Charter (and shall procure that any notices, and shall use best efforts to procure that any acknowledgements, thereto are duly executed by the relevant parties to them);
|
|
(ii)
|
a first priority assignment of time charter and earnings by way of security over all of the right, title and interest of the Owner and/or any of its Affiliates in any bareboat charter as referred to in Clause 16.35(b) above (and shall procure that any notices, and shall use best efforts to procure that any acknowledgements, thereto are duly executed by the relevant parties to them); and
|
|
(iii)
|
tax opinions from its tax advisers in respect of all relevant jurisdictions (which may be disclosed to the Finance Parties) in respect of potential withholding and income tax payable under the Transaction Documents and any bareboat charter as referred to in Clause 16.35(b) above, in form and substance satisfactory to each of the Finance Parties,
|
|
(a)
|
an assignment absolutely, subject to a proviso for re-assignment on redemption, of all of the Owner's rights in respect of the Operational Software, the Software Licences and the Software Records; and
|
|
(b)
|
a chattel mortgage in relation to the Technical Records.
|
|
(a)
|
The Owner shall procure that on or before the Petrobras Acceptance Longstop Date, Ocean Rig and the Bareboat Charterer enter into the Petrobras Charter Novation Agreement.
|
|
(b)
|
The Owner shall procure that on or prior to the date of the Petrobras Charter Novation, the following documents are entered into:
|
|
(i)
|
the Bareboat Charterer Accounts Charge Agreement;
|
|
(ii)
|
the Bareboat Charterer Petrobras Charter Assignment;
|
|
(iii)
|
the Management Agreement Assignment Side Letter;
|
|
(iv)
|
the Confirmatory Charge No.2;
|
|
(v)
|
the Bareboat Charterer Guarantee;
|
|
(vi)
|
the Petrobras Consent;
|
|
(vii)
|
the Bareboat Charterer Insurances Assignment;
|
|
(viii)
|
the Management Agreement Assignment Agreement; and
|
|
(ix)
|
the Mortgage Amendment Agreement.
|
|
(a)
|
report on and monitor the Builder's compliance with the Construction Insurances as detailed in Article XVII of the Shipbuilding Contract and report on and confirm its compliance with the terms of the Construction Insurances in respect of the Vessel and the equipment the subject of the Shipbuilding Contract and the Buyer Supplies (as such term is defined in the Shipbuilding Contract). The Owner shall procure that its Buyer Supplies are insured for all risks of physical loss or damage as is typically insured, and that the Owner is insured for protection and indemnity risks during sea trials either under the Builder's insurance policy or, if this is not possible, the Owner shall have protection and indemnity insurance effective from the commencement of the sea trials for an amount not less than US$300,000,000 (the amount to be reviewed and mutually agreed to be reduced if the Owners' liability during the sea trials is less than the above amount). The Owner shall also have general third party liability insurance effective from the commencement of the sea trials for not less than US$25,000,000 to the extent such insurance policy will be available;
|
|
(b)
|
at all times after the Delivery Date keep the Vessel insured in the Required Insurance Amount, with a deductible of no more than US$15,000,000, in Dollars against fire and usual marine risks (including Excess Risks), and if requested by the Facility Agent all spares, stores and other property held elsewhere than on the Vessel against all risks of physical loss or damage as is typically insured, in each case in the name of the Owner and during the Bareboat Charter Period the Bareboat Charterer and with the interest of the Security Trustee noted as mortgagee or assignee with underwriters or insurance companies approved by the Facility Agent and (as applicable) through brokers approved by the Facility Agent (acting on the instructions of the Majority Lenders), and by policies in form and content approved by the Facility Agent (acting on the instructions of the Majority Lenders);
|
|
(c)
|
at all times after the Delivery Date keep the Vessel insured in at least the Required Insurance Amount in the same manner as above against war risks (including, without limitation), (a) those risks covered by the standard form of English marine policy with Institute War and Strike Clauses (Time) (1/10/83) attached or similar cover and (b) war, terrorist or similar protection and indemnity risks cover excluded from the protection and indemnity risks
|
|
(i)
|
with underwriters or insurance companies approved by the Facility Agent (acting on the instructions of the Majority Lenders) and by policies in form and content approved by the Facility Agent (acting on the instructions of the Majority Lenders); or
|
|
(ii)
|
by entering the Vessel in an approved war risks association;
|
|
(d)
|
at all times after the Delivery Date keep, or procure the Charterer keeps the Vessel entered in an approved protection and indemnity association against all risks as are normally covered by such protection and indemnity association, including without limitation, pollution risks, the proportion not recoverable in case of collision under the running down clause inserted in the ordinary Hull and Machinery policies and Specialist Operations coverage, in the name of the Owner and during the Bareboat Charter Period the Bareboat Charterer for claims which the Owner or the Bareboat Charterer would have incurred had they been pursued against it, such cover to be for:
|
|
(i)
|
the higher of the minimum amount stipulated in any Drilling Charter and US$500,000,000 or such other amount of cover against P&I including pollution risks as shall at any time be comprised in the basic entry of the Vessel with either a protection and indemnity association which is a member of either the International Group of P&I Clubs (or any successor organisation designated by the Facility Agent for this purpose); or
|
|
(ii)
|
if the International Group or any such successor ceases to exist or ceases to provide or arrange any cover for pollution risks (or any supplemental cover for pollution risks over and above that afforded by the basic entry of the Vessel with its protection and indemnity association), such aggregate amount of cover against pollution risks as shall be generally available on the open market and by basic entry with a protection and indemnity association for ships of the same type, size, age and flag as the Vessel,
|
|
(e)
|
at all times following the Final Completion Date, maintain in full force and effect loss of hire insurance, on a daily amount fixed and agreed basis, in respect of the Vessel subject to a deductible of 45 days (or minimum deductible available by loss of hire underwriters) per incident or occurrence and for a minimum indemnity period of 180 days with underwriters or insurance companies approved by the Facility Agent (acting on the instructions of the Majority Lenders) in form and content approved by the Facility Agent (acting on the instructions of the Majority Lenders), provided always that the obligation of the Owner or during the Bareboat Charter Period the Bareboat Charterer to maintain such loss of hire insurance shall cease if a prudent owner of a vessel similar to the Vessel and employed on a
|
|
(f)
|
at all times following the Final Completion Date, if and as requested from time to time by the Facility Agent, to maintain in full force and effect insurance(s) in respect of such other matters of whatsoever nature and howsoever arising in respect of which insurance would be available to a prudent owner of the Vessel; and
|
|
(g)
|
comply or procure compliance with the terms and conditions of the Obligatory Insurances (including, but not limited to, making any declarations required by such insurances in order to maintain cover for operating within any waters where it is required to be located under a Drilling Charter, which declarations the Owner or during the Bareboat Charter Period the Bareboat Charterer shall promptly copy to the Facility Agent), not do, consent to or permit any act or omissions which might invalidate or render unenforceable the whole or any part of the Insurances.
|
|
(a)
|
a mortgagee's interest marine insurance providing for the indemnification of the Finance Parties for any Losses under or in connection with any Finance Document which directly or indirectly result from loss of or damage to the Vessel or a liability of the Vessel or the Owner or the Bareboat Charterer, 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 any allegation concerning:
|
|
(i)
|
any act or omission on the part of the Owner, or the Bareboat Charterer of any operator or manager of the Vessel or of any officer, employee or agent of the Owner or of any such person, including any breach of warranty or condition or any nondisclosure relating to such Obligatory Insurance;
|
|
(ii)
|
any act or omission, whether deliberate, negligent or accidental, or any knowledge or privity of the Owner or the Bareboat Charterer or any other person referred to in subparagraph (i) above, or of any officer, employee or agent of an Owner or the Bareboat Charterer or of such a person, including the casting away or damaging of the Vessel and/or the Vessel 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 policy providing for the indemnification of the Finance Parties against, amongst other things, any Losses or other consequences of any Environmental Claim, including the risk of expropriation, arrest or any form of detention of the Vessel, or the imposition of any Security Interest over the Vessel and/or any other matter capable of being insured against under a mortgagee's interest additional perils (pollution) policy whether or not similar to the foregoing.
|
|
(a)
|
not without the prior consent of the Facility Agent (acting on the instructions of the Majority Lenders) alter any Obligatory Insurance nor make, do, consent or agree to any act or omission which would or might render any Obligatory Insurance invalid, void, voidable or unenforceable or render any sum paid out under any Obligatory Insurance repayable in whole or in part;
|
|
(b)
|
not cause or permit the Vessel to be operated in any way inconsistent with the provisions or warranties of, or implied in, or outside the cover provided by, any Obligatory Insurance or to be engaged in any voyage or to carry any cargo not permitted by any Obligatory Insurances;
|
|
(c)
|
duly and punctually pay all premiums, calls, contributions or other sums of money from time to time payable in respect of any Obligatory Insurance;
|
|
(d)
|
at least 28 days before the relevant policies, contracts or entries expire, notify the Facility Agent of the names of the insurance companies and/or the war risks and protection and indemnity associations proposed to be employed for the purposes of the renewal of such Obligatory Insurances and of the amounts in which such Obligatory Insurances are proposed to be renewed and the risks to be covered, and to procure that appropriate instructions for the renewal of such Obligatory Insurances on the terms so specified are given to the brokers (if applicable) and associations in each case approved in accordance with Clause 17.1 (Scope of Obligatory Insurances) and will at least three Business Days before such expiry (or within such shorter period as the Facility Agent may from time to time agree) confirm in writing to the Facility Agent that such renewals have been effected in accordance with the instructions so given;
|
|
(e)
|
forthwith upon the effecting of any Obligatory Insurance, ensure that all approved brokers (if applicable) and/or approved insurers and the approved P&I Club provide the Facility Agent 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 substantially in the forms scheduled to or referred to in the Delivery General Assignment or such other form acceptable to the Facility Agent, in each case stating the full particulars (including the dates and amounts) of the insurance, and on request produce the receipts for each sum paid by it pursuant to paragraph (c) above, and including undertakings from the approved brokers (if applicable) or the approved underwriters or insurance companies that:
|
|
(i)
|
they will have endorsed on each policy, when issued, a loss payee provision and notice of assignment, in the forms scheduled to the Delivery General Assignment and the Bareboat Charterer Insurances Assignment;
|
|
(ii)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee;
|
|
(iii)
|
they will advise the Facility Agent forthwith of any material change to the terms of the Obligatory Insurances;
|
|
(iv)
|
they will upon written application by the approved brokers (if applicable) to the Facility Agent notify the Facility Agent, not less than 28 days before the expiry of
|
|
|
(v)
|
they will not exercise any rights of cancellation in respect of default in payment of premiums without giving the Facility Agent 28 days' notice in writing, either by letter or electronically transmitted message, and a reasonable opportunity for the Facility Agent to pay any premiums outstanding;
|
|
(vi)
|
if any of the Obligatory Insurances form part of a fleet cover, their lien on the fleet policies shall be confined to the outstanding premiums due on the Vessel only;
|
|
(vii)
|
they shall neither set off against any claim(s) and/or returns of premium(s) in respect of the Vessel any premiums due in respect of other vessels under the fleet cover or any premiums due for other insurances, nor cancel the insurance for reason of nonpayment of premiums for other vessels under the fleet cover or of premiums for such other insurances; and
|
|
(viii)
|
they will arrange for a separate policy to be issued in respect of the Vessel forthwith upon being so requested by the Facility Agent;
|
|
(f)
|
not settle, release, compromise or abandon any claim in respect of any Total Loss unless the Facility Agent (acting promptly and on the instructions of the Majority Lenders, acting reasonably) is satisfied that such release, settlement, compromise or abandonment will not prejudice the interests of the Finance Parties under or in relation to any Finance Document;
|
|
(g)
|
arrange for the execution and delivery of such guarantees as may from time to time be required by any protection and indemnity or war risks club or association in accordance with the rules of such club or association;
|
|
(h)
|
procure that the interest of the Security Trustee as mortgagee or assignee is noted on all policies of insurance; and
|
|
(i)
|
in the event that the Owner receives payment of any moneys in respect of Insurances, save as provided in the loss payable clauses scheduled to the Delivery General Assignment, or the Bareboat Charterer receives payment of any moneys, save as provided in the loss payable clauses scheduled to the Bareboat Charterer Insurances Assignment, forthwith pay over the same to the Security Trustee and, until paid over, such moneys shall be held in trust for the Security Trustee by the Owner, or as the case may be, the Bareboat Charterer.
|
|
(a)
|
the events referred to in Clauses 18.6 to 18.11 shall not, in respect of the Builder, constitute an Event of Default if:
|
|
(i)
|
the relevant event is remedied to the satisfaction of the Facility Agent (acting on the instructions of the Majority Lenders) and on terms (and with replacement security) approved by the Facility Agent (acting on the Instructions of the Majority Lenders); or
|
|
(ii)
|
the Builder is substituted by another builder satisfactory to the Facility Agent (acting on the instructions of the Majority Lenders) and on terms (and with replacement security) approved by the Facility Agent (acting on the Instructions of the Majority Lenders),
|
|
(b)
|
the events referred to in Clauses 18.6 to 18.11 shall not, in respect of the Charterer or Manager, constitute an Event of Default if a substitute charterer or substitute manager is appointed, or the relevant event is otherwise cured by the Owner, in accordance with Clause 16.23.
|
|
(a)
|
is caused by technical or administrative error; and
|
|
(b)
|
where such payment is a scheduled payment, is remedied within one Business Day of the due date; or
|
|
(c)
|
where such payment is on-demand, is remedied within three Business Days of the date of demand.
|
|
(a)
|
is capable of remedy; and
|
|
(b)
|
is remedied within 30 days of the earlier of the Facility Agent giving notice of the breach to the Owner and the Owner, the Bareboat Charterer, the Sponsor or Ocean Rig, as the case may be, becoming aware of the non-compliance, save in the case of non-compliance with:
|
|
(i)
|
Clause 16.11(a) (Security), Clause 16.12(a) (Registration of the Vessel), Clause 16.22(c) (Charters), Clause 16.24 (Management Agreement) (save to the extent Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement) applies) or Clause 17.1 (Scope of Obligatory Insurances), for each of which the grace period for remedy shall be three days from the date the Facility Agent gives notice of the breach to the Owner, provided always that, in respect of Clause 17.1 (Scope of Obligatory Insurances) and clause 7.14 (Financial Covenants) of the Ocean Rig Guarantee, there shall be no grace period unless the Facility Agent (acting on the good faith and reasonable instructions of the Majority Lenders) is satisfied that the Finance Parties have neither suffered nor will, in the future, suffer any material detriment (whether financial, to their security position or otherwise howsoever) as a result of the non-compliance; or
|
|
(ii)
|
Clause 16.23 (Breach or Termination of Drilling Charter or Management Agreement) for which there shall be no grace period for remedy following expiry of the grace period provided in that Clause 16.23.
|
|
(a)
|
are capable of remedy; and
|
|
(b)
|
are remedied within 14 days of the Owner, the Bareboat Charterer or, as the case may be, Ocean Rig receiving notice from the Facility Agent of the circumstances giving rise to the misrepresentation or breach of warranty.
|
|
(a)
|
Any Sister Event of Default occurs and is continuing; or
|
|
(b)
|
Any of the following occurs in respect of any of the Project Parties:
|
|
(i)
|
any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period);
|
|
(ii)
|
any of its Financial Indebtedness:
|
|
(A)
|
becomes prematurely due and payable;
|
|
(B)
|
is placed on demand; or
|
|
(C)
|
is capable of being declared by or on behalf of a creditor to be prematurely due and payable or of being placed on demand,
|
|
(iii)
|
any commitment for its Financial Indebtedness is cancelled or suspended as a result of an event of default (howsoever described),
|
|
(a)
|
it is, or is deemed for the purposes of any relevant applicable law to be, unable to pay its debts as they fall due or insolvent;
|
|
(b)
|
it admits its inability to pay its debts as they fall due;
|
|
(c)
|
it suspends making payments on any of its debts or announces an intention to do so;
|
|
(d)
|
by reason of actual or anticipated financial difficulties, it begins negotiations with any creditor for the rescheduling or restructuring of any of its indebtedness;
|
|
(e)
|
the value of its assets is less than its liabilities (taking into account contingent and prospective liabilities); or
|
|
(f)
|
a moratorium is declared in respect of any of its Financial Indebtedness; or
|
|
(g)
|
any similar local law process not described in (a) to (f) above.
|
|
(a)
|
Except as provided in paragraph (b) below, any of the following occurs in respect of any of the Project Parties:
|
|
(i)
|
any step is taken with a view to a moratorium, composition, assignment or similar arrangement with any of its creditors;
|
|
(ii)
|
a meeting of its shareholders, directors or other officers is convened for the purpose of considering any resolution to petition for or to file documents with a court or any registrar for its winding-up, administration or dissolution or any such resolution is passed;
|
|
(iii)
|
any person presents a petition or files documents with a court for its winding-up, administration or dissolution or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise);
|
|
(iv)
|
any Security Interest is enforced over any of its assets;
|
|
(v)
|
an order for its winding-up, administration or dissolution is made;
|
|
(vi)
|
any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, receiver and manager, judicial manager, administrator or similar officer is appointed in respect of it or any of its assets;
|
|
(vii)
|
its directors, shareholders or other officers request the appointment of, or give notice of their intention to appoint a liquidator, trustee in bankruptcy, judicial custodian, judicial manager, receiver and manager, compulsory manager, receiver, administrative receiver, receiver and manager, administrator or similar officer; or
|
|
(viii)
|
any other analogous step or procedure is taken in any jurisdiction.
|
|
(b)
|
Paragraph (a) above does not apply to a frivolous or vexatious petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within 14 days.
|
|
(a)
|
Any event occurs or circumstance arises in relation to the Vessel which results in any person making an Environmental Claim against any Finance Party and such Finance Party has not been indemnified by a person and on terms satisfactory to the relevant Finance Party in respect of such amount within fifteen days after the date on which such Environmental Claim is made provided such Finance Party gives prompt notice of such claim to the Owner and has afforded the Owner (at its cost and expense) the right (with full cooperation of such Finance Party) to such action as it considers necessary or appropriate (acting reasonably) to defend or contest in its own name the validity or amount of such claim. The Owner may defend or contest the validity or amount of such claim in the name of the relevant Finance Party if such Finance Party is (acting in its absolute discretion) satisfied that:
|
|
(i)
|
such action has a reasonable chance of success and in reaching this conclusion such Finance Party shall have the right to require the Owner to obtain (at the cost of the Owner) the opinion of Queen's Counsel concerning the merits of the claim. Counsel shall be selected and instructed by the legal advisers to the Finance Party concerned;
|
|
(ii)
|
such Finance Party is satisfied that such claim will not materially damage its reputation or any part of its business affairs; and
|
|
(iii)
|
the scope of the provisions of Clause 23.2 (Other indemnities) will indemnify the relevant Finance Party against any and all costs, losses, expenses or liabilities arising as a result of the Owner defending or contesting the validity or amount of the claim in the name of that Finance Party.
|
|
(b)
|
Any event occurs or circumstance arises in relation to the ownership or operation of the Vessel which results in criminal liability being imposed on any Finance Party except where such liability arises out of the gross negligence or wilful misconduct of such Finance Party.
|
|
(a)
|
If an Event of Default is outstanding, the Facility Agent may (and if the Majority Lenders so instruct it, shall), by notice to the Owner:
|
|
(i)
|
cancel the undrawn, uncancelled amount of the Commitments; and/or
|
|
(ii)
|
declare that all or part of any amounts outstanding under the Finance Documents are:
|
|
(A)
|
immediately due and payable; and/or
|
|
(B)
|
payable on demand by the Facility Agent.
|
|
(b)
|
The Owner hereby agrees that for the purposes of this Agreement service by the Facility Agent of a notice under and in accordance with paragraph (a) above shall constitute a valid and effective service of such notice and the Owner shall be deemed to have become liable to make any payments expressed in that notice upon service of such notice.
|
|
(a)
|
For the purposes of the Greek Security, the Owner hereby irrevocably and unconditionally undertakes to pay to the Security Trustee amounts equal to any amounts owing by the Owner to the relevant Secured Parties under the Finance Documents as and when the same fall due for payment thereunder, so that the Security Trustee shall be the obligee of such covenant to pay and shall be entitled to claim performance thereof in its own name and not as agent acting on behalf of the relevant Secured Parties. The Owner and the Security Trustee acknowledge that for this purpose such obligations of the Owner are several and are separate and independent from, and without prejudice to, the identical obligations which the Owner has to the Secured Parties under the relevant Finance Documents, provided that this shall not result in the Owner incurring an aggregate obligation to any such Secured Parties under the Finance Documents. To this end and without prejudice to the foregoing, it is agreed that:
|
|
(i)
|
the amounts due and payable by the Owner under this Clause 19.2 (the Parallel Debt) shall be decreased to the extent that the Owner has paid any amounts to the Secured Parties or any of them in respect of the Secured Liabilities and vice versa; and
|
|
(ii)
|
the Parallel Debt shall not exceed the aggregate of the corresponding obligations which the Owner has to the Secured Parties under the Finance Documents.
|
|
(b)
|
Nothing in this Clause shall in any way negate, affect or increase the obligations of the Owner to any Secured Party under the Finance Documents in respect of the Secured Liabilities. For the purpose of this Clause, the Security Trustee acts in its own name and on behalf of itself and not as agent or representative of any other party hereto and any security granted to the Security Trustee to secure the Parallel Debt is granted to the Security Trustee in its capacity as creditor of the Parallel Debt and solely for the purpose referred to above.
|
|
(a)
|
The Security Trustee shall obtain any Security Interest provided under or pursuant to a Security Document governed by Greek law (the Greek Security) in its own name.
|
|
(b)
|
The Security Trustee shall have full and unrestricted entitlement to and authority in respect
|
|
(a)
|
Each Lender and Administrative Party (other than the Facility Agent) irrevocably appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
|
(b)
|
Each Lender and Administrative Party irrevocably authorises the Facility Agent to:
|
|
(i)
|
perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions; and
|
|
(ii)
|
execute each Finance Document expressed to be executed by the Facility Agent.
|
|
(c)
|
The Facility Agent has only those duties which are expressly specified in the Finance Documents. Those duties are solely of a mechanical and administrative nature. For the avoidance of doubt, those duties do not extend to any administration or other work which might result from any Lender transferring any of its rights and obligations under the Finance Documents to any person. Any such administration or other work shall be undertaken by the transferee.
|
|
(a)
|
If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and may exercise those rights and powers as though it were not an Administrative Party.
|
|
(b)
|
Each Administrative Party may:
|
|
(i)
|
carry on any business with the Owner, the Bareboat Charterer, the Charterer, Ocean Rig or its related entities (including acting as an agent or a trustee for any other financing); and
|
|
(ii)
|
retain any profits or remuneration it receives under the Finance Documents or in relation to any other business it carries on with the Owner, the Bareboat Charterer, the Charterer, Ocean Rig or its related entities.
|
|
(a)
|
rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person;
|
|
(b)
|
rely on any statement made by any person regarding any matters which may reasonably be assumed to be within its knowledge or within its power to verify;
|
|
(c)
|
engage, pay for and rely on professional advisers selected by it; and
|
|
(d)
|
act under the Finance Documents through its personnel and agents.
|
|
(a)
|
The Facility Agent is fully protected if it acts on the valid instructions of the Majority Lenders in the exercise of any right, power or discretion or any matter not expressly provided for in the Finance Documents. Any such instructions given by the Majority Lenders will be binding on all the Lenders. In the absence of instructions, in exercising the relevant right, power or discretion, the Facility Agent may act or refrain from acting as it considers to be in the best interests of all the Lenders.
|
|
(b)
|
The Facility Agent may assume that unless it has received notice to the contrary, any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised.
|
|
(c)
|
The Facility Agent may require the receipt of security satisfactory to it, whether by way of payment in advance or otherwise, against any liability or loss which it may incur in complying with the instructions of the Majority Lenders and may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received security satisfactory to it, whether by way of payment in advance or otherwise, against any liability or loss which it may incur in complying with the instructions.
|
|
(d)
|
The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings in connection with any Finance Document.
|
|
(a)
|
No Administrative Party is responsible to any other Finance Party for the adequacy, accuracy or completeness of any Finance Document or any other document or any statement or information (whether written or oral) made or supplied in connection with any Finance Document.
|
|
(b)
|
No Administrative Party is responsible for the legality, validity, effectiveness, adequacy, completeness or enforceability of any Finance Document or any other document.
|
|
(c)
|
Without affecting the responsibility of the Owner for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms that it:
|
|
(i)
|
has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of the Owner, the Bareboat Charterer, Ocean Rig, the Charterer and their related entities and the nature and extent of any recourse against any Party, the Bareboat Charterer, Ocean Rig, the Charterer or their assets); and
|
|
(ii)
|
has not relied exclusively on any information provided to it by any Administrative Party in connection with any Finance Document.
|
|
(a)
|
The Facility Agent is not liable or responsible to any other Lender or Administrative Party for any action taken or not taken by it in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
|
(b)
|
No Party (other than the relevant Administrative Party) may take any proceedings against any officers, employees or agents of another Administrative Party in respect of any claim it might have against that Administrative Party or in respect of any act or omission of any kind by that officer, employee or agent in connection with any Finance Document. Any officer, employee or agent of an Administrative Party may rely on this Clause 20.8 and enforce its terms under the Contracts (Rights of Third Parties) Act 1999.
|
|
(c)
|
The Facility Agent is not liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
|
(d)
|
Nothing in this Agreement will oblige any Administrative Party to satisfy any know your customer requirement in relation to the identity of any person on behalf of any Finance Party.
|
|
(e)
|
Each Finance Party confirms to each Administrative Party that it is solely responsible for any know your customer requirements it is required to carry out and that it may not rely on any statement in relation to those requirements made by any other person.
|
|
(a)
|
The Facility Agent is not obliged to monitor or enquire whether a Default has occurred. The Facility Agent is not deemed to have knowledge of the occurrence of a Default.
|
|
(i)
|
receives notice from a Party or any other party to a Transaction Document referring to this Agreement, describing a Default and stating that the event is a Default; or
|
|
(ii)
|
is aware of the non-payment of any principal or interest or any fee payable to a Finance Party (other than the Facility Agent or any of the Mandated Lead Arranger) under this Agreement, it must promptly notify the Finance Parties.
|
|
(a)
|
The Facility Agent must promptly forward to the person concerned the original or a copy of any document which is delivered to the Facility Agent by a Party for that person.
|
|
(b)
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
|
(c)
|
Except as provided above, the Facility Agent has no duty:
|
|
(i)
|
either initially or on a continuing basis to provide any Lender with any credit or other information concerning the risks arising under or in connection with the Finance Documents (including any information relating to the financial condition or affairs of the Owner or any of its related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before, on or after the date of this Agreement; or
|
|
(ii)
|
unless specifically requested to do so by a Lender in accordance with a Finance Document, to request any certificate or other document from the Owner or the Bareboat Charterer.
|
|
(d)
|
In acting as the Facility Agent, the agency division of the Facility Agent is treated as a separate entity from its other divisions and departments. Any information acquired by the Facility Agent which, in its opinion, is acquired by it otherwise than in its capacity as the Facility Agent may be treated as confidential by the Facility Agent and will not be treated as information possessed by the Facility Agent in its capacity as such.
|
|
(e)
|
The Owner irrevocably authorises the Facility Agent to disclose to the other Finance Parties any information which is received by it in its capacity as the Facility Agent, subject always to the requirements of confidentiality under Clause 28 (Disclosure of Information).
|
|
(f)
|
The Facility Agent is not obliged to disclose to any person any confidential information supplied to it by or on behalf of the Owner or the Bareboat Charterer solely for the purpose of evaluating whether any waiver or amendment is required in respect of any term of the Finance Documents.
|
|
(a)
|
Without limiting the liability of the Owner or the Bareboat Charterer under the Finance Documents, each Lender shall indemnify the Facility Agent for that Lender's Pro Rata Share of any loss or liability incurred by the Facility Agent in acting as the Facility Agent (including without limitation any costs associated with effecting, maintaining or renewing any insurances in accordance with and subject to Clause 17.4 (Power of Facility Agent to insure) and acting in accordance with the instructions of the Majority Lenders in accordance with Clause 20.6 (Majority Lenders' instructions)) unless the Facility Agent has been
|
|
(b)
|
If a Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may after giving notice to that Party:
|
|
(i)
|
deduct from any amount received by it for that Party any amount due to the Facility Agent from that Party under a Finance Document but unpaid; and
|
|
(ii)
|
apply that amount in or towards satisfaction of the owed amount.
|
|
(a)
|
The Facility Agent may resign and appoint any of its Affiliates as successor Facility Agent by giving 30 days' notice to the other Finance Parties and the Owner.
|
|
(b)
|
Alternatively the Facility Agent may resign by giving written notice to the Finance Parties and the Owner, in which case the Majority Lenders may appoint a successor Facility Agent.
|
|
(c)
|
If no successor Facility Agent has been appointed under paragraph (b) above within 30 days after notice of resignation was given, the Facility Agent may appoint a successor Facility Agent.
|
|
(d)
|
The resignation of the Facility Agent and the appointment of any successor Facility Agent will both become effective only when the successor Facility Agent (i) notifies all the Parties that it accepts its appointment and (ii) confirms that it is satisfied that the rights under the Security Documents and the DPP have been assigned or transferred to it. On giving the notification and confirmation, the successor Facility Agent will succeed to the position of the Facility Agent and the term Facility Agent will mean the successor Facility Agent.
|
|
(e)
|
The retiring Facility Agent must, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as the Facility Agent under the Finance Documents.
|
|
(f)
|
Upon its resignation becoming effective, this Clause will continue to benefit the retiring Facility Agent in respect of any action taken or not taken by it in connection with the Finance Documents while it was the Facility Agent, and, subject to paragraph (e) above, it will have no further obligations in its capacity as Facility Agent under any Finance Document.
|
|
(g)
|
The Majority Lenders may, by notice to the Facility Agent, require it to resign under paragraph (b) above.
|
|
(h)
|
Any successor Facility Agent will be located or have a branch in London, Luxembourg or New York and the Facility Agent or, as the case may be, the Mandated Lead Arranger will consult with the Owner in relation to the identity of such successor Facility Agent.
|
|
(a)
|
The Facility Agent may treat each Lender as a Lender, entitled to payments under this Agreement and as acting through its Facility Office(s) unless it has received not less than five Business Days prior notice in writing from that Lender to the contrary.
|
|
(b)
|
The Facility Agent may at any time, and must if requested to do so by the Majority Lenders, convene a meeting of the Lenders.
|
|
(c)
|
The Facility Agent must keep a record of all the Parties and supply any other Party with a copy of the record on request. The record will include each Lender's Facility Office(s) and contact details for the purposes of this Agreement.
|
|
(a)
|
The Owner shall pay to the Facility Agent for the account of each Lender a fee calculated at the rate of sixty basis points (60bps) per annum on the undrawn, uncancelled amount of the Maximum Facility Amount at such time.
|
|
(b)
|
The accrued commitment fee is payable to the Facility Agent quarterly in arrear on the last day of each Term, the first payment to be paid on the last day of the first Term. Accrued
|
|
(a)
|
The Owner shall, as an independent obligation, indemnify each Secured Party against any cost, loss or liability which that Secured Party or any of its Affiliates incurs as a consequence of:
|
|
|
(i)
|
the Secured Party receiving an amount in respect of the Owner's liability under the Finance Documents; or
|
|
(ii)
|
that liability being converted into a claim, proof, judgment or order, in a currency other than the currency in which the amount is expressed to be payable under the relevant Finance Document.
|
|
(b)
|
Unless otherwise required by law, the Owner waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.
|
|
(a)
|
The Owner shall, as an independent obligation, indemnify each Secured Party and any Affiliate against any cost, loss or liability which that Secured Party or any of its Affiliates incurs as a consequence of:
|
|
(i)
|
the occurrence of any Event of Default;
|
|
(ii)
|
any failure by the Owner to pay any amount due under a Finance Document on its due date including any resulting from any distribution or redistribution of any amount among the Lenders under this Agreement;
|
|
(iii)
|
(other than by reason of gross negligence or default by that Finance Party) a Loan not being made after a Request has been delivered for that Loan; or
|
|
(iv)
|
a Loan (or part of a Loan) not being prepaid in accordance with this Agreement.
|
|
(b)
|
The Owner must indemnify against any cost, loss or liability incurred by any Administrative Party as a result of:
|
|
(i)
|
investigating any event which that Administrative Party reasonably believes is a Default; or
|
|
(ii)
|
acting or relying on any notice which that Administrative Party reasonably believes to be genuine, correct and appropriately authorised, (and any such Administrative Party with such a belief must promptly notify the Facility Agent of the same).
|
|
(c)
|
The Owner must promptly pay and discharge, or cause to be paid or discharged, upon the same becoming payable (and shall, if requested by a Secured Party, produce to that Secured Party evidence of the payment and discharge thereof) and indemnify on demand and keep indemnified each Secured Party and its Affiliates on a full indemnity basis against a claim against it by, or a liability to, a third party including, without limitation, in relation to any Taxes (other than any Taxes levied or assessed on net income, profits or gains) or any other Losses which relate to or arise out of or are in any way connected to:
|
|
(i)
|
the condition, testing, delivery, design, leasing, chartering, sub-chartering, sub-sub-chartering, construction, manufacture, purchase, acquisition, bailment, fitting out, sale, importation to or exportation from any country, registration, ownership, possession, management, control, inspection, surveying, engineering, contracting, installation, manning, provisioning, the provision of bunkers and lubricating oils, dry docking, use, operation, maintenance, repair, service, modification, overhaul, replacement, removal, performance, transportation, flag, navigation, certification, classification, nature, description, acceptance, insurance, refurbishment, conversion, change, alteration or laying-up of the Vessel or any part thereof or otherwise in connection with the Vessel including, without prejudice to the generality of the foregoing, any Losses arising from any pollution or other environmental damage caused by or emanating from the Vessel or caused by the Vessel becoming a wreck or an obstruction to navigation whether or not the Vessel (or any part thereof) is in possession or control of the Owner or the Manager or any other person and wherever the location;
|
|
(ii)
|
any repossession, return, redelivery, storage, maintenance, protection, attempted sale, sale or other disposition of the Vessel following the termination of the chartering of the Vessel which, if carried out by the Facility Agent, Security Trustee or the Lenders, is carried out in accordance with the terms of the Finance Documents;
|
|
(iii)
|
the complete or partial removal, decommissioning, disposal, making safe, destruction, abandonment or loss of the Vessel including any matter which the Vessel contains or has at any time contained;
|
|
(iv)
|
any damage or loss to the Vessel irrespective of how caused;
|
|
(v)
|
any Environmental Claim or any actual or alleged breach, contravention or violation of any Environmental Laws or Environmental Approvals in any way relating to the Vessel or the activities of any Environmental Affiliates;
|
|
(vi)
|
any design, article or material of the Vessel or relating thereto giving rise to any infringement (or alleged infringement) of any patent or other intellectual property rights; or
|
|
(vii)
|
the occupation, arrest, confiscation, requisition, theft, registration, compulsory acquisition, restraint of the Vessel or prevention thereof, seizure, taking in execution, impounding, forfeiture or detention of the Vessel, or in securing the release of the Vessel (including, without limitation, by the provision of or by procuring a guarantee, bond, cash deposit or other like security).
|
|
(a)
|
arises from an act or omission on the part of that Secured Party or, as the case may be Affiliate which constitutes fraud, wilful misconduct or gross negligence on the part of such Secured Party or, as the case may be, Affiliate;
|
|
(b)
|
is caused by any failure on the part of that Secured Party to comply with any of its express obligations under any of the Finance Documents to which that Secured Party is a party (but excluding any such breach or failure that arises as a result of the failure of a party to such Finance Document (other than that Secured Party) duly and punctually to perform its express obligations);
|
|
(c)
|
is one in respect of which that Secured Party or, as the case may be, Affiliate, is expressly and specifically indemnified and has received and is entitled to retain such indemnity under any other provision of the Finance Documents; or
|
|
(d)
|
is a cost or expense expressly borne by the Secured Parties under any Finance Document.
|
|
(a)
|
The Owner must pay to each Lender or, as the case may be, each Swap Bank, its Break Costs in accordance with this Agreement.
|
|
(b)
|
Break Costs are, subject to paragraphs (c) and (d), the amount (if any) determined by the relevant Lender by which:
|
|
(i)
|
the interest which that Lender would have received for the period from the date of receipt of payment of any part of its share in a Loan or an overdue amount to the last day of the applicable Term for that Loan or overdue amount if the principal or overdue amount received had been paid on the last day of that Term;
|
|
exceeds
|
|
(ii)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or overdue amount received by it on deposit with a leading
|
|
(c)
|
In respect of an Eksportfinans Lender, Break Costs means the amount (if any) determined by that Eksportfinans Lender by which:
|
|
(i)
|
the net present value of the interest which the Eksportfinans Lender should have received by applying the Eksportfinans CIRR on the Eksportfinans Loan for the period starting on the date of receipt of the Eksportfinans Loan or its relevant part thereof to (and including) the Final Maturity Date (such amount to be calculated to take into account all of the Repayment Dates in accordance with the Repayment Schedule, as if the Eksportfinans Loan or its relevant part thereof had been repaid on all of the scheduled Instalment Repayment Dates to and including the Final Maturity Date),
|
|
(ii)
|
the net present value of the amount that Eksportfinans Lender would be able to obtain by placing an amount equal to the Eksportfinans Loan or its relevant part thereof at the Prepayment Swap Rate for the period starting on the Business Day Following receipt of the Eksportfinans Loan or its relevant part thereof to (and including) the Final Maturity Date and following the Repayment Schedule.
|
|
(d)
|
In respect of a Swap Bank and a Swap Agreement, Break Costs are the amount (if any) determined by the relevant Swap Bank as being an amount equal to any Swap Termination Payment for that Swap Agreement.
|
|
(e)
|
Each Lender or, as the case may be, each Swap Bank must supply to the Owner a certificate showing the calculations in reasonable detail confirming the amount of any Break Costs claimed by it under this Clause.
|
|
(a)
|
Except as provided in this Clause 26, no term of the Finance Documents may be amended or waived without the agreement of the Owner and the Facility Agent. The Facility Agent (acting on the instructions of the Majority Lenders, or otherwise in accordance with the relevant Finance Documents) may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.
|
|
(b)
|
The Facility Agent must promptly notify the other Parties and each Swap Bank of any amendment or waiver effected by it under paragraph (a) above. Any such amendment or waiver is binding on all the Parties.
|
|
(c)
|
The Owner shall not be concerned or have any responsibility to ensure that the Facility Agent has received any necessary authorisation or consent from the Lenders, and may rely on the agreement of the Facility Agent above.
|
|
(a)
|
An amendment or waiver which relates to:
|
|
(i)
|
the definition of Majority Lenders in Clause 1.1 (Definitions);
|
|
(ii)
|
an extension of the date of payment of any amount to a Lender under the Finance Documents;
|
|
(iii)
|
a reduction in the amount of any payment of principal, interest, fee or other amount payable to a Lender under the Finance Documents;
|
|
(iv)
|
an increase in, or an extension of, a Commitment or the Total Commitments;
|
|
(v)
|
a release of the Owner other than in accordance with the terms of this Agreement;
|
|
(vi)
|
a release of any Security Document other than in accordance with the terms of this Agreement;
|
|
(vii)
|
a term of a Finance Document which expressly requires the consent of each Lender;
|
|
(viii)
|
the right of a Lender to assign or transfer its rights or obligations under the Finance Documents;
|
|
(ix)
|
the ranking or subordination provided for in the DPP;
|
|
(x)
|
any assignment or transfer by the Owner pursuant to Clause 27.1 (Assignments and
|
|
transfers by the Owner);
|
|
(xi)
|
Clause 2.4 (Nature of a Finance Party's rights and obligations); or
|
|
(xii)
|
this Clause,
|
|
(b)
|
An amendment or waiver which relates to a reduction in the Applicable Margin in respect of the Eksportfinans Loans during the Pre-Completion Period or the Post-Completion Eksportfinans Interest Rate may only be made with the consent of all the Eksportfinans Lenders and the Owner.
|
|
(c)
|
An amendment or waiver which relates to a reduction in LIBOR or the Applicable Margin in respect of the KEXIM Loans may only be made with the consent of all the KEXIM Lenders and the Owner.
|
|
(d)
|
An amendment or waiver which relates to a reduction in the Applicable Margin in respect of the Commercial Loans may only be made with the consent of all the Commercial Lenders and the Owner.
|
|
(e)
|
A Fee Letter may be amended or waived with the agreement of each Administrative Party or, as the case may be, Mandated Lead Arranger that is party to that Fee Letter and the Owner.
|
|
(a)
|
may be exercised as often as necessary;
|
|
(b)
|
are cumulative and not exclusive of its rights under the general law; and
|
|
(c)
|
may be waived only in writing and specifically.
|
|
(a)
|
Subject to Clause 27.5 but without further cost to the Owner, a Lender (the Existing Lender) may at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to any other bank or other financial institution or other entity which is regularly engaged in or established for the purpose of making, issuing, purchasing or investing in loans, securities and other financial assets (the New Lender).
|
|
(b)
|
Any Eksportfinans Lender may at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to GIEK.
|
|
(c)
|
The Facility Agent is not obliged to execute a Transfer Certificate until it has completed all know your customer requirements to its satisfaction. The Facility Agent must promptly notify the Existing Lender and the New Lender if there are any such requirements.
|
|
(d)
|
A transfer of obligations will be effective only if the obligations are novated in accordance with the following provisions of this Clause 27.
|
|
(e)
|
On the transfer becoming effective in this manner, the relevant Lender will be released from its obligations under this Agreement to the extent that they are transferred to the New Lender.
|
|
(f)
|
Any reference in the Finance Documents to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under the Finance Documents.
|
|
(g)
|
The New Lender shall pay a transfer fee of US$5,000 to the Facility Agent immediately following any transfer under and in accordance with the provisions of this Clause 27.
|
|
(h)
|
Each Lender agrees not to effect any assignment or transfer under this Clause 27 without simultaneously effecting a pro rata assignment or transfer of its equivalent rights and/or obligations under the Sister Loan Agreement.
|
|
(a)
|
In this Clause 27.3:
|
|
(i)
|
the proposed Transfer Date specified in that Transfer Certificate; and
|
|
(ii)
|
the date on which the Facility Agent executes that Transfer Certificate.
|
|
(b)
|
A novation is effected if:
|
|
(i)
|
the Existing Lender and the New Lender deliver to the Facility Agent a duly completed Transfer Certificate; and
|
|
(ii)
|
the Facility Agent executes it.
|
|
(c)
|
On the Transfer Date:
|
|
(i)
|
the New Lender will assume the rights and obligations of the Existing Lender expressed to be the subject of the novation in the Transfer Certificate in substitution for the Lender; and
|
|
(ii)
|
the Existing Lender will be released from those obligations and cease to have those rights.
|
|
(d)
|
Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to execute any duly completed Transfer Certificate on its behalf.
|
|
(e)
|
The Facility Agent must, as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Owner a copy of that Transfer Certificate.
|
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
(i)
|
the financial condition of the Owner or any other Project Party; or
|
|
(ii)
|
the legality, validity, effectiveness, completeness, accuracy, adequacy, enforceability or performance of:
|
|
(A)
|
any Finance Document or any other document;
|
|
(B)
|
any statement or information (whether written or oral) made in or supplied in connection with any Finance Document; or
|
|
(C)
|
any observance by the Owner or Ocean Rig of its obligations under any Finance Document or any other documents, and any representations or warranties implied by law are excluded.
|
|
(b)
|
Each New Lender confirms to the Existing Lender that it:
|
|
(i)
|
has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of the Owner and its related entities, or any other Project Party and the nature and extent of any recourse against any Party or any other Project Party or its or their assets) in connection with its participation in this Agreement; and
|
|
(ii)
|
has not relied exclusively on any information supplied to it by the Existing Lender in connection with any Finance Document.
|
|
(c)
|
Nothing in any Finance Document requires an Existing Lender to:
|
|
(i)
|
accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 27; or
|
|
(ii)
|
support any losses incurred by the New Lender by reason of the non-performance by the Owner of its obligations under any Finance Document or otherwise.
|
|
(a)
|
a Lender assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and
|
|
(b)
|
as a result of circumstances existing at the date of the assignment, transfer or change occurs, the Owner would be obliged to pay a Tax Payment or an Increased Cost,
|
|
(a)
|
Each Finance Party must keep confidential any information supplied to it by or on behalf of the Owner in connection with the Finance Documents. However, a Finance Party is entitled to disclose information:
|
|
(i)
|
which is publicly available, other than as a result of a breach by that Finance Party of this Clause 28;
|
|
(ii)
|
in connection with any legal or arbitration proceedings;
|
|
(iii)
|
if required to do so under any Applicable Law;
|
|
(iv)
|
to a governmental, banking, taxation or other regulatory authority;
|
|
(v)
|
to its professional advisers;
|
|
(vi)
|
to the extent allowed under paragraph (b) below; or
|
|
(vii)
|
with the agreement of the Owner.
|
|
(b)
|
A Finance Party may disclose to an Affiliate or any person with whom it may enter, or has entered into, any kind of transfer, participation or other agreement in relation to this Agreement (a participant):
|
|
(i)
|
a copy of any Finance Document; and
|
|
(ii)
|
any information which that Finance Party has acquired under or in connection with any Finance Document.
|
|
(c)
|
This Clause 28 supersedes any previous confidentiality undertaking given by a Finance Party in connection with this Agreement prior to it becoming a Party.
|
|
(a)
|
the recovering Finance Party must, within three Business Days, supply details of the recovery to the Facility Agent;
|
|
(b)
|
the Facility Agent must calculate whether the recovery is in excess of the amount which the recovering Finance Party would have received if the recovery had been received by the Facility Agent under this Agreement; and
|
|
(c)
|
the recovering Finance Party must pay to the Facility Agent an amount equal to such excess (the redistribution).
|
|
(a)
|
The Facility Agent must treat a redistribution as if it were a payment by the Owner under this Agreement and distribute it among the Finance Parties, other than the recovering Finance Party, accordingly.
|
|
(b)
|
When the Facility Agent makes a distribution under paragraph (a) above, the recovering Finance Party will be subrogated to the rights of the Lenders which have shared in that redistribution.
|
|
(c)
|
If and to the extent that the recovering Finance Party is not able to rely on any rights of subrogation under paragraph (b) above, the Owner will owe the recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged.
|
|
(d)
|
If:
|
|
(i)
|
a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to the Owner; and
|
|
(ii)
|
the recovering Finance Party has paid a redistribution in relation to that recovery, Each Finance Party must reimburse the recovering Finance Party all or the appropriate portion of the redistribution paid to that Finance Party, together with interest for the period while it held the re-distribution. In this event, the subrogation in paragraph (b) above will operate in reverse to the extent of the reimbursement.
|
|
(a)
|
it would not, after the payment, have a valid claim against the Owner in the amount of the redistribution; or
|
|
(b)
|
it would be sharing with another Lender any amount which the recovering Finance Party has received or recovered as a result of legal or arbitration proceedings, where:
|
|
(i)
|
the recovering Finance Party notified the Facility Agent of those proceedings; and
|
|
(ii)
|
the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.
|
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of the Finance Documents; or
|
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other term of the Finance Documents.
|
|
(a)
|
Any communication in connection with a Finance Document must be in writing and, unless otherwise stated, may be given:
|
|
(i)
|
in person, by post or fax; or
|
|
(ii)
|
to the extent agreed by the Parties making and receiving the communication, by e-mail or other electronic communication.
|
|
(c)
|
Unless it is agreed to the contrary, any consent or agreement required under a Finance Document must be given in writing.
|
|
(a)
|
Except as provided below, the contact details of each Party for all communications in connection with the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party.
|
|
(b)
|
The contact details of the Owner for this purpose are:
|
|
(c)
|
The contact details of the Facility Agent for this purpose are:
|
|
(d)
|
The contact details of the Security Trustee for this purpose are:
|
|
(e)
|
A Party may change its contact details by giving five Business Days' notice to the Facility Agent or (in the case of the Facility Agent) to the other Parties.
|
|
(f)
|
Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.
|
|
(a)
|
Except as provided below, any communication in connection with a Finance Document will be deemed to be given as follows:
|
|
(i)
|
if delivered in person, at the time of delivery;
|
|
(ii)
|
if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope; and
|
|
(iii)
|
if by fax, when received in legible form.
|
|
(b)
|
A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.
|
|
(c)
|
A communication to the Facility Agent will only be effective on actual receipt by it.
|
|
(a)
|
Any notice given in connection with a Finance Document must be in English.
|
|
(b)
|
Any other document provided in connection with a Finance Document must be:
|
|
(i)
|
in English; or
|
|
(ii)
|
(unless the Facility Agent otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.
|
|
(a)
|
The English courts have jurisdiction to settle any dispute in connection with any Finance Document or any non-contractual obligations in connection with them, and the parties irrevocably submit to the jurisdiction of the Courts of England and Wales, including in connection with any dispute relating to any non-contractual obligations arising out of or in connection with any Finance Document.
|
|
(b)
|
The English courts are the most appropriate and convenient courts to settle any such dispute in connection with any Finance Document. The Owner agrees not to argue to the contrary and waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with any Finance Document.
|
|
(c)
|
This Clause 36 is for the benefit of the Lenders and the Administrative Parties only. To the extent allowed by law, the Lenders and the Administrative Parties may take:
|
|
(i)
|
proceedings in any other court; and
|
|
(ii)
|
concurrent proceedings in any number of jurisdictions.
|
|
(d)
|
References in this Clause to a dispute in connection with a Finance Document include any dispute as to the existence, validity or termination of that Finance Document.
|
|
(a)
|
The Owner irrevocably appoints Ince Process Agents Ltd of International House, 5th Floor, 1st Katherine's Way, London, E1W 1AY (attn: Mr. Michael Volikas) as its agent under the Finance Documents for service of process in any proceedings before the English courts in connection with any Finance Document.
|
|
(b)
|
If any person appointed as process agent under this Clause is unable for any reason to act as agent for service of process, the Owner must forthwith (and in any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Facility Agent (acting reasonably). Failing this, the Facility Agent may appoint another process agent for this purpose.
|
|
(c)
|
The Owner agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
|
|
(d)
|
This Clause 36 does not affect any other method of service allowed by law.
|
|
(a)
|
agrees not to claim any immunity from proceedings brought by a Finance Party against it in relation to a Finance Document 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 those proceedings; and
|
|
(c)
|
waives all rights of immunity in respect of it or its assets.
|
|
Commitments
|
||
|
|
|
|
|
Eksportfinans
Name of Original Lender Commitments (US$)
|
KEXIM
Commitments (US$)
|
Commercial
Commitments (US$)
|
|
|
|
|
Eksportfinans Lenders:
|
|
|
|
|
|
|
|
Eksportfinans ASA
|
25,000,000
|
|
|
KEXIM Lenders
|
|
|
|
|
|
|
|
Export - Import Bank of Korea
|
|
150,000,000
|
|
|
|
|
|
Deutsche Bank AG, London Branch
|
|
12,500,000
|
|
|
|
|
|
Commercial Lenders:
|
|
|
|
|
|
|
|
Deutsche Bank AG, London Branch
|
|
|
|
|
|
|
|
DVB Bank N.V., Nordic Branch
|
|
|
25,000,000
|
|
|
|
|
|
|
|
30,000,000
|
|
|
|
|
Helaba Landesbank Hessen- Thuringen Girozentrale, New York Branch
|
|
|
27,500,000
|
1.
|
An up to date certificate of goodstanding of the Owner, the Parent and the Parent Shareholder dated no more than two Business Days prior to the first Utilisation Date and a certified copy of the certificate of incorporation and constitutional documents of each.
|
2.
|
A certified copy of a resolution of the board of directors of the Owner, the Parent and the Parent Shareholder:
|
|
(a)
|
approving the terms of, and the transactions contemplated by, each Finance Document to which it is a party and resolving that it executes each such Finance Document then to be executed;
|
|
(b)
|
authorising a specified person or persons to execute each Finance Document on its behalf to which it is a party, then to be executed; and
|
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with each Finance Document then to be executed.
|
3.
|
A specimen of the signature of each person authorised by the resolutions referred to in 2 above.
|
4.
|
An original of each of the following documents, notarised, legalised and/or apostilled as necessary, duly executed by the parties to it:
|
|
(a)
|
each Finance Document (save for those Finance Documents listed in paragraph 8 of Part 2 of this Schedule, paragraph 9 of Part 3 of this Schedule and in paragraphs 2 and 13 of Part 5 of this Schedule) including each Swap Agreement.
|
|
(b)
|
each Sister Finance Document (save for those Sister Finance Documents listed in paragraph 8 of schedule 2, part 2 of the Sister Loan Agreement, paragraph 9 of schedule 2, part 3 of the Sister Loan Agreement and paragraphs 2 and 13 of schedule 2, part 5 of the Sister Loan Agreement);
|
|
(c)
|
the GIEK Guarantee issued in favour of the Eksportfinans Lenders; and
|
|
(d)
|
any mandate or similar document, to be entered into by the Owner with the Account Bank.
|
5.
|
A certified copy of each Related Contract (other than any Drilling Charter, Charterer Parent Guarantee, the Management Agreement and Obligatory Insurances).
|
6.
|
Duly executed originals (or, if originals are not available, fax/pdf copies with originals to follow as soon as possible and in any event within five (5) Business Days) of all notices of assignment required to be served under each Security Document and duly executed originals (or, if originals are not available, fax/pdf copies with originals to follow as soon as possible and in any event within one (1) month) of the acknowledgements thereof (but not including the notices and acknowledgements to
|
7.
|
A letter from Ince Process Agents Ltd., agreeing to its appointment as process agent for the Owner under the Finance Documents.
|
8.
|
A legal opinion of Allen & Overy LLP, London, English legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
9.
|
A legal opinion of Woo, Yun, Kang, Jeong Han, Korean legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
10.
|
A legal opinion of Seward & Kissel LLP, Marshall Islands legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
11.
|
A legal opinion of Pologiorgis, Babalis, Panselinos, Troullinos, Mavrou Law Offices, Greek legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
12.
|
Evidence that all fees (including all fees payable on or at the first Utilisation Date under the Fee Letters and legal costs) and reasonable out-of-pocket expenses then due and payable from the Owner under the Finance Documents have been or will be paid by the first Utilisation Date or other drawdown as part of the Incidental Costs Loan.
|
13.
|
Evidence that each Account has been opened in accordance with the Finance Documents.
|
14.
|
Detailed construction, operating and maintenance cost budget, the total Vessel capex plan including the construction schedule, and pro-forma financial projections prepared by the Owner with respect to the project the subject of the Related Contracts in form and substance satisfactory to the Lenders.
|
15.
|
Opinion and report by Marsh that all Construction Insurances are in acceptable form and amount and placed with acceptable underwriters, and such opinion, report and insurance is acceptable to the Facility Agent.
|
16.
|
Confirmation from the Builder that the Owner has paid it in aggregate an amount equal to at least the Initial Equity Contribution and confirmation from the Account Bank or, as the case may be, the Equity Account Bank that the Owner has paid:
|
|
(a)
|
any Balancing Equity Contribution into the Proceeds Account; and
|
|
(b)
|
the Equity Collateral to be paid under the terms of this Agreement on or by the Incidental Costs Loan Utilisation Date into the Equity Account.
|
17.
|
Evidence that all Transaction Authorisations required by the Owner to perform its obligations under the Transaction Documents have been obtained or will, at the appropriate time, be obtained.
|
18.
|
Certificate from the Owner confirming that there are no material disputes with the Builder and confirmation from the same that there have been no amendments or variations to the Shipbuilding Contract or the Other Shipbuilding Contract other than amendments disclosed and agreed in writing prior to the date hereof or permitted under the terms of this Agreement.
|
19.
|
Confirmation from the Lenders that they have satisfied their "know your customer" requirements in respect of the relevant parties to the Transaction Documents.
|
20.
|
A copy of any and all invoices issued by the Builder in relation to any Instalments payable by the Owner on or before the Incidental Costs Loan Utilisation Date.
|
21.
|
Original Share Certificates of each of the Owner, the Parent and the Parent Shareholder in relation to the Share Charge.
|
22.
|
Executed blank share transfer forms in relation to the Share Charge.
|
23.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
24.
|
A legal opinion of Allen & Overy LLP, English legal advisers to GIEK, addressed to Eksportfinans and concerning certain provisions of the GIEK Guarantee.
|
25.
|
Completion of each Lender's legal, technical, environmental, financial, tax and insurance due diligence with regard to the project, including, among others, review of all Related Contracts and receipt of appropriate internal credit approvals by such Lender.
|
26.
|
Receipt by the Kexim Lenders of the Kexim Guarantee and evidence that any special conditions required by Kexim in connection with the Facility have been met.
|
27.
|
A duly signed syndication letter between GIEK, Deutsche Bank AG, London Branch and Dexia Credit Local, New York Branch.
|
1.
|
Refresh certificates, update report or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 17 and 18.
|
2.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 14.
|
3.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B) in respect of the Instalment Loan 1.
|
4.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Instalment Loan 1 Utilisation Date.
|
5.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
6.
|
Evidence from the Equity Account Bank that the sum of U.S.$90,000,000 has been placed in the Equity Account in accordance with Clause 12.2(a)(iii)(B).
|
7.
|
A certified copy of the Management Agreement.
|
8.
|
An original of the Management Agreement Assignment, notarised, legalised and/or apostillised as necessary, duly executed by the parties to it together with duly executed originals (or, if originals are not available, fax/pdf copies with originals to follow as soon as possible and in any event within five (5) Business Days) of the notice of assignment to the Manager and a duly executed original (or, if originals are not available, fax/pdf copies with originals to follows as soon as possible and in any event within one (1) month) of the acknowledgement from the Manager, notarised, legalised and/or apostillised, as required.
|
9.
|
A legal opinion of Simonsen Advokatfirma, Norwegian legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
10.
|
A legal opinion of Allen & Overy LLP, London, English legal advisers to the Lenders, addressed to the Facility Agent as agent for and on behalf of itself and the Lenders.
|
1.
|
Refresh certificates or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 17 and 18.
|
2.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 14, and certificate from the Classification Society verifying that the construction milestones for the Instalment Loan 2 Utilisation Date specified under Clause 16.29 (Construction Milestones) has been met.
|
3.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the Instalment Loan 2.
|
4.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
5.
|
A certified copy of the Petrobras Charter duly executed.
|
6.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Instalment Loan 2 Utilisation Date or, if the Instalment Loan is to be used to refinance the Instalment, the invoice issued by the Builder in relation to the Instalment referred to in Article II paragraph 4(c) of the Shipbuilding Contract together with evidence in writing that the Owner has paid the relevant Instalment to the Builder.
|
7.
|
Evidence from the Equity Account Bank that the required Equity Collateral has been placed in the Equity Account in accordance with Clause 12.2(a)(iii)(C).
|
8.
|
Evidence from the Account Bank that the amount of US$25,000,000 has been paid into the Debt Service Reserve Account in accordance with Clause 12.8(a).
|
1.
|
Refresh certificates or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 17 and 18.
|
2.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 14 and a certificate from the Classification Society verifying that the construction milestones for the Instalment Loan 3 Utilisation Date specified under Clause 16.29 (Construction Milestones) has been met.
|
3.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the Instalment Loan 3.
|
4.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
5.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Instalment Loan 3 Utilisation Date or, if the Instalment Loan is to be used to refinance the Instalment, the invoice issued by the Builder in relation to the Instalment referred to in Article II paragraph 4(d) of the Shipbuilding Contract together with evidence in writing that the Owner has paid the relevant Instalment to the Builder.
|
1.
|
A certified copy of the invoice issued by the Builder in relation to the Instalment payable by the Owner on the Delivery Loan Utilisation Date.
|
2.
|
Evidence that the requirements and obligations under Clause 16.35 (Petrobras Charter) have, in the opinion of the Facility Agent (acting on the instructions of all of the Lenders), been satisfied.
|
3.
|
Duly executed originals (other than any bareboat charter agreement, a certified copy of which shall be provided) of each of the documents required pursuant to Clause 16.35 (Petrobras Charter), notarised, legalised and/or apostilled as necessary.
|
4.
|
A duly executed original of the Delivery General Assignment and the Mortgage.
|
5.
|
A duly executed Power of Attorney and the Appointment of Judicial Representative in respect of the Mortgage.
|
6.
|
A legal opinion from Allen & Overy LLP, London, English legal advisers to the Lenders, in respect of the Delivery General Assignment.
|
7.
|
A legal opinion from Seward & Kissel, Marshall Islands legal adviser to the Lenders, in respect of the Delivery General Assignment and the Mortgage.
|
8.
|
A legal opinion of Tanzanian counsel approved by the Facility Agent in relation to Petrobras Tanzania's due execution of the Petrobras Charter.
|
9.
|
A transcript of the Marshall Islands Ship Registry showing that:
|
|
(a)
|
the Mortgage has been duly recorded in the Marshall Islands and constitutes a first priority security interest over the Vessel and that all taxes and fees payable to the Marshall Islands Registrar of Shipping in respect of the Vessel have been paid in full; and
|
|
(b)
|
the Vessel is provisionally registered in the name of the Owner as a fully completed Marshall Islands ship free of all Security Interests other than Permitted Liens.
|
10.
|
Copies of such other documents and/or legal opinions which, based on legal advice received from the relevant advisers referred to in this Agreement and which are reasonably required to evidence the legality, validity and enforceability of the obligations of the parties to any Finance Document or any of the documents required pursuant to Clause 16.35 (Petrobras Charter) being delivered on the Delivery Loan Utilisation Date.
|
11.
|
A certified copy of:
|
|
(a)
|
a final classification certificate from the Classification Society in respect of the Vessel showing the Vessel to be in class without recommendation, condition or qualification (other than any immaterial recommendations, conditions or qualifications that are capable of rectification within 12 months or such shorter period as is required by the Classification Society) or, in the event that this is not available, a faxed copy with a certified copy to follow as soon as practicable after the Delivery Date;
|
|
(b)
|
a valid Interim Safety Management Certificate;
|
|
(c)
|
a valid Document of Compliance; and
|
|
(d)
|
a valid International Ship Security Certificate.
|
12.
|
Confirmation acceptable to the Facility Agent (such acceptance not to be unreasonably withheld or delayed) that the Owner will accept the Vessel pursuant to the terms of the Shipbuilding Contract and execute a protocol of delivery and acceptance.
|
13.
|
A certified copy of the commercial invoice in respect of the Vessel.
|
14.
|
A certified copy of the Builder's certificate in respect of the Vessel.
|
15.
|
Duly executed and, where necessary, notarised, legalised and/or apostilled notices of assignment of the Obligatory Insurances in respect of the Vessel duly executed by the Owner substantially in the form provided for in the Delivery General Assignment and all confirmations and acknowledgements required in accordance with the terms of the Delivery General Assignment.
|
16.
|
Confirmation from the Facility Agent of its satisfaction with a final insurance report prepared by Marsh, or such other insurance adviser appointed by the Facility Agent and fax confirmations from each broker (if applicable), insurer and club concerned with the Obligatory Insurances that the insurances meet the requirements set out in Clause 17.1 including the insurances referred to in Clause 17.1(e), will be effective from the actual delivery of the Vessel and are consistent with the requirements of the Drilling Charter.
|
17.
|
Duly executed letters of undertaking substantially in the form provided in the Delivery General Assignment from, inter alios, the approved brokers (if applicable), insurer and club concerned with the Obligatory Insurances.
|
18.
|
The Annual Budget of the Owner in agreed form and approved by the Lenders, for the year from the date of payment of the Delivery Loan falls.
|
19.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution required under Clause 12.2(a)(i); and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the Delivery Loan.
|
20.
|
A copy of any and all invoices issued by the Builder in relation to any Instalments payable by the Owner on or before the Delivery Loan Utilisation Date.
|
21.
|
Refresh certificates or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in Part 1 of this Schedule at paragraphs 1, 2, 3, 19, 20 and 22.
|
22.
|
Evidence that the Required DSRA Balance has been or will immediately after the drawing of the Delivery Loan be credited to the balance of the Debt Service Reserve Account.
|
23.
|
Receipt of updated budgets and financial projections referred to in Part 1 of this Schedule at paragraph 22, and a technical memorandum issued by the Technical Adviser covering the relevant
|
24.
|
Evidence that the Owner's equity in the Vessel is not less than 30% of the total Vessel Cost.
|
25.
|
Evidence that the project the subject of the Related Contracts, has sufficient ongoing maintenance opex and working capital requirements, and evidence in the form of reserves, if necessary, that the Owner will be able to meet these ongoing requirements.
|
26.
|
Confirmation from the Owner and the Facility Agent (acting on behalf of each of the Lenders) of their satisfactory due diligence on the Charterer's and the Lenders' withholding tax and the Owner's withholding tax and corporation tax exposure, if any.
|
27.
|
Provision of a tax opinion from the Owner's tax advisers (which may be disclosed to the Finance Parties) in respect of potential withholding and income tax payable under the Transaction Documents in form and substance satisfactory to each of the Finance Parties.
|
28.
|
Confirmation, if applicable, that in the circumstances referred to in Clause 18.1 (Events of Default), following an event of insolvency in respect of the Builder, a replacement builder has been agreed by the Finance Parties and the Owner within three months of the date of such insolvency event.
|
1.
|
A copy of any and all invoices in respect of approved Incidental Vessel Costs payable by the Owner on or immediately following the proposed Utilisation Date for the requested Incidental Vessel Costs Loan.
|
2.
|
Confirmation from the Account Bank that the Owner has deposited in the Proceeds Account:
|
|
(a)
|
any Balancing Equity Contribution; and
|
|
(b)
|
the relevant Equity Contribution required under Clause 12.2(a)(i)(B), in respect of the relevant Incidental Vessel Costs Loan.
|
1.
|
We refer to the Credit Agreement. This is a Request. Terms defined in the Credit Agreement shall have the same meaning when used in this Request.
|
2.
|
We wish to borrow a Loan from you as follows:
|
3.
|
Our payment instructions are:
|
|
(a)
|
amount of Loan in respect of Instalment payable under the Shipbuilding Contract to be payable to the Builder's account [set out account details];
|
|
(b)
|
[Required DSRA Balance to be credited to the Debt Service Reserve Account;
|
|
(c)
|
Incidental Loan Costs to be credited to the Facility Agent's nominated account; and
|
|
(d)
|
Incidental Vessel Costs to be credited to [the Owner's: current account for forward payment to] the relevant payee account indicated in invoice]
|
4.
|
We confirm that each condition precedent under the Credit Agreement which must be satisfied on the date of this Request is so satisfied and that the Repeating Representation are true and correct with reference to the facts and circumstances now subsisting.
|
5.
|
This Request is irrevocable.
|
6.
|
If applicable, a copy of:
|
|
(a)
|
[the relevant invoice from the Builder the final stage certificate signed by the Builder and us; and
|
|
(b)
|
the relevant invoices in respect of the Incidental Vessel Costs, is attached to this Request.]
|
1.
|
We [ ] (the Existing Lender) and [ ] (the New Lender) agree to the Existing Lender and the New Lender novating all the Existing Lender's rights and obligations referred to in the Schedule in accordance with Clause 27.3 (Procedure for transfer by way of novations) of the Credit Agreement.
|
2.
|
The specified date for the purposes of Clause 27.3(a) of the Credit Agreement is [date of novation],
|
3.
|
The Facility Office and address for notices of the New Lender for the purposes of Clause 33.2 (Contact details) of the Credit Agreement are set out in the Schedule attached to this Certificate.
|
4.
|
This Novation Certificate is governed by English law.
|
(a)
|
All of the rights and obligations of the Existing Lender in respect of the Facility - principal amount US$[ ].
|
(b)
|
The principal amount of US$[ ] in respect of each of the Loans and all the rights and obligations attached to the same - total principal amount US$[ ].
|
[Existing Lender]
|
[New Lender]
|
|
|
By:
|
By:
|
|
|
Date:
|
Date:
|
Date
|
Repayment
|
|
1.
|
30 March 2012
|
US$27,500,000
|
2.
|
28 September 2012
|
US$27,500,000
|
3.
|
28 March 2013
|
US$27,500,000
|
4.
|
30 September 2013
|
US$27,500,000
|
5.
|
31 March 2014
|
US$27,500,000
|
6.
|
30 September 2014
|
US$27,500,000
|
7.
|
31 March 2015
|
US$27,500,000
|
8.
|
30 September 2015
|
US$27,500,000
|
9.
|
31 March 2016
|
US$27,500,000
|
10.
|
30 September 2016
|
US$27,500,000
|
11.
|
31 March 2017
|
US$27,500,000
|
12.
|
29 September 2017
|
US$27,500,000
|
13.
|
29 March 2018
|
US$27,500,000
|
14.
|
29 September 2018
|
US$27,500,000
|
15.
|
29 March 2019
|
US$27,500,000
|
16.
|
30 September 2019
|
US$27,500,000
|
17.
|
31 March 2020
|
US$27,500,000
|
18.
|
30 September 2020
|
US$27,500,000
|
To:
|
Deutsche Bank Luxembourg S.A as Facility Agent
|
|
|
From:
|
Drillship Kithira Owners Inc.
|
|
|
|
Drillship Kithira Owners Inc. Credit Agreement dated [ ] (the Credit Agreement)
|
1.
|
Terms defined in the Credit Agreement have the same meaning in this Certificate.
|
2.
|
We hereby certify that [no Default or Mandatory Termination Event has occurred and is continuing or is outstanding] [a Default/Mandatory Prepayment Event under Clause [ ] of [specify document] is outstanding] and the following steps are being taken to remedy it [ ].
|
3.
|
With respect to the Calculation Period ending on [insert Repayment Date] the Debt Service Ratio was [·] calculated on the basis of the figures in the table below.
|
Relevant figures for Calculation Period
|
US$
|
Gross Revenues received
|
|
Operating Expenses payable
|
|
Financing Costs accrued
|
|
Financing Principal payable
|
|
CAPEX payable
|
|
1.
|
Costs and expenses under the Management Agreement incurred in the Pre-Completion Period in accordance with the Approved Budget attached as Appendix 12 up to US$34,100,000.
|
2.
|
Initial Debt Service Reserve Contribution up to US$25,000,000.
|
1.
|
General
|
(a)
|
The Mandatory Cost is to compensate a Lender for the cost of compliance with:
|
|
(i)
|
the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces any of its functions); or
|
|
(ii)
|
the requirements of the European Central Bank.
|
(b)
|
The Mandatory Cost is expressed as a percentage rate per annum.
|
(c)
|
The Mandatory Cost is the weighted average (weighted in proportion to the percentage share of each Lender in the relevant Loan) of the rates for the Lenders calculated by the Facility Agent in accordance with this Schedule on the first day of a Term (or as soon as possible after then).
|
(d)
|
The Facility Agent must distribute each amount of Mandatory Cost among the Lenders on the basis of the rate for each Lender.
|
(e)
|
Any determination by the Facility Agent pursuant to this Schedule will be, in the absence of manifest error, conclusive and binding on all the Parties.
|
2.
|
For a Lender lending from a Facility Office in the U.K.
|
(a)
|
The relevant rate for a Lender lending from a Facility Office in the U.K. is calculated in accordance with the following formula:
|
|
E x 0.01 0,
|
|
|
-----------%
|
per annum
|
|
300
|
|
(b)
|
For the purposes of this paragraph 2:
|
|
(i)
|
fees rules means the then current rules on periodic fees in the Supervision Manual of the FSA Handbook or any other law or regulation as may then be in force for the payment of fees for the acceptance of deposits;
|
|
(ii)
|
fee tariffs means the fee tariffs specified in the fees rules under fee-block Category Al (Deposit acceptors) (ignoring any minimum fee or zero rated fee required pursuant to the fees rules but applying any applicable discount rate); and
|
|
(iii)
|
tariff base has the meaning given to it in, and will be calculated in accordance with, the fees rules.
|
(c)
|
Each rate calculated in accordance with the formula is, if necessary, rounded upward to four decimal places.
|
(d)
|
If requested by the Facility Agent, each Reference Bank must, as soon as practicable after publication by the Financial Services Authority, supply to the Facility Agent the rate of charge payable by that Reference Bank to the Financial Services Authority under the fees rules for that financial year of the Financial Services Authority (calculated by that Reference Bank as being the average of the fee tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per £1 million of the tariff base of that Reference Bank.
|
(e)
|
Each Lender must supply to the Facility Agent the information required by it to make a calculation of the rate for that Lender. In particular, each Lender must supply the following information on or prior to the date on which it becomes a Lender:
|
|
(i)
|
the jurisdiction of its Facility Office; and
|
|
(ii)
|
any other information that the Facility Agent reasonably requires for that purpose.
|
(f)
|
The rates of charge of each Reference Bank for the purpose of E above are determined by the Facility Agent based upon the information supplied to it under paragraphs (d) and (e) above. Unless a Lender notifies the Facility Agent to the contrary, the Facility Agent may assume that the Lender's obligations in respect of cash ratio deposits and special deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the U.K.
|
(g)
|
The Facility Agent has no liability to any Party if its calculation over or under compensates any Lender. The Facility Agent is entitled to assume that the information provided by any Lender or Reference Bank under this Schedule is true and correct in all respects.
|
3.
|
For a Lender lending from a Facility Office in a Participating Member State
|
(a)
|
The relevant rate for a Lender lending from a Facility Office in a Participating Member State is the percentage rate per annum notified by that Lender to the Facility Agent. This percentage rate per annum must be certified by that Lender in its notice to the Facility Agent as its reasonable determination of the cost (expressed as a percentage of that Lender's share in all Loans made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of Loans made from that Facility Office.
|
(b)
|
If a Lender fails to specify a rate under paragraph (a) above, the Facility Agent will assume that the Lender has not incurred any such cost.
|
4.
|
Changes
|
(a)
|
The Facility Agent may, after consultation with the Owner and the Lenders, determine and notify all the Parties of any amendment to this Schedule which is required to reflect:
|
|
(i)
|
any change in law or regulation; or
|
|
(ii)
|
any requirement imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any successor authority).
|
(b)
|
If the Facility Agent, after consultation with the Owner, determines that the Mandatory Cost for a Lender lending from a Facility Office in the U.K. can be calculated by reference to a screen, the Facility Agent may notify all the Parties of any amendment to this Agreement which is required to reflect this.
|
|
The Lenders
|
|
|
|
|
|
By:
|
|
|
|
|
|
as authorised signatory for
|
|
|
|
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
as attorney for
|
|
|
|
|
|
EKSPORTFINANS ASA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
as attorney for
|
|
|
|
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
as authorised signatory for
|
|
|
|
|
|
DVB BANK N.V., NORDIC BRANCH
|
|
By:
|
|
as authorised signatory for
|
|
HELABA LANDESBANK HESSEN-T^RINGEN GIROZENTRALE, NEW YORK BRANCH
|
|
|
|
|
The Swap Banks
|
|
By:
|
|
as authorised signatory for
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
|
|
|
|
The Facility Agent
|
|
By:
|
|
as attorney for
|
|
DEUTSCHE BANK LUXEMBOURG S.A.
|
|
|
|
|
The Security Trustee
|
|
By:
|
|
as attorney for
|
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT
|
|
Clause
|
Page
|
|
1.
|
Interpretation
|
1
|
2.
|
Effectiveness
|
2
|
3.
|
Guarantee and indemnity
|
2
|
4.
|
Nature of a Finance Party's obligations
|
4
|
5.
|
Taxes
|
5
|
6.
|
Payments
|
6
|
7.
|
Representations and warranties
|
7
|
8.
|
Undertakings
|
10
|
9,
|
The Administrative Parties
|
13
|
10.
|
Evidence and calculations
|
13
|
11.
|
Indemnities
|
13
|
12.
|
Amendments and waivers
|
14
|
13.
|
Changes to the Parties
|
14
|
14.
|
Disclosure of information
|
15
|
15.
|
Set-off
|
15
|
16.
|
Pro rata sharing
|
16
|
17.
|
Severability
|
17
|
18.
|
Counterparts
|
17
|
19.
|
Notices
|
17
|
20.
|
Expenses
|
18
|
21.
|
Language
|
19
|
22.
|
Governing law
|
19
|
23.
|
Enforcement
|
19
|
24.
|
Miscellaneous
|
20
|
Schedules
|
||
1.
|
Original Lenders
|
21
|
Signatories
|
22
|
(1)
|
DRYSHIPS INC., a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands (the Guarantor);
|
(2)
|
DEUTSCHE BANK LUXEMBOURG S.A. as facility agent for itself and on behalf of the financial institutions listed in Schedule 1 (Original Lenders) as original lenders (the Original Lenders) (the Facility Agent); and
|
(3)
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT as agent and trustee for the Finance Parties (the Security Trustee).
|
1.
|
INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
the Credit Agreement;
|
|
(b)
|
each Security Document;
|
|
(c)
|
the DPP;
|
|
(d)
|
the GIEK Security Trustee Letter;
|
|
(e)
|
each Fee Letter;
|
|
each Transfer Certificate;
|
|
(g)
|
the Account Bank Mandate; and
|
|
(h)
|
any other document designated as such by the Facility Agent and the Owner provided that the Swap Agreement shall not at any time be designated as a Finance Document for the purposes of this Guarantee by the Facility Agent and the Owner.
|
1.2
|
Construction
|
|
(a)
|
Capitalised terms defined in the Credit Agreement have, unless expressly defined in this Guarantee, the same meaning in this Guarantee.
|
|
(b)
|
The provisions of clause 1.2 (Construction) of the Credit Agreement apply to this Guarantee as though they were set out in full in this Guarantee, except that references to the Credit Agreement are to be construed as references to this Guarantee.
|
2.
|
EFFECTIVENESS
|
3.
|
GUARANTEE AND INDEMNITY
|
3.1
|
Guarantee and indemnity
|
|
(a)
|
The Guarantor irrevocably and unconditionally guarantees to each Finance Party the obligations of the Owner to each Finance Party which become due under the Finance Documents plus other amounts which become payable in connection therewith under other provisions of this Guarantee (the Post-Delivery Guaranteed Amount).
|
|
(b)
|
The Guarantor undertakes with each Finance Party that, whenever the Owner does not pay any such amount expressed to be payable by it under a Finance Document, it must immediately on demand by the Security Trustee pay that amount as if it were the principal obligor in respect of that amount.
|
|
(c)
|
The Guarantor agrees with each Finance Party that if, for any reason, any amount claimed by a Finance Party under this Clause is not recoverable from the Guarantor on the basis of a guarantee then the Guarantor will be liable as a principal debtor and primary obligor to indemnify that Finance Party in respect of any loss it incurs as a result of the Owner failing to pay any such amount expressed to be payable by it under a Finance Document on the date when it ought to have been paid. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause had the amount claimed been recoverable on the basis of a guarantee.
|
|
(d)
|
The aggregate amount payable by the Guarantor under this Clause 3.1 shall not exceed US$225,000,000 plus other amounts which become payable in connection therewith under other provisions of this Guarantee.
|
3.2
|
Continuing guarantee
|
3.3
|
Reinstatement
|
|
(a)
|
If any discharge (whether in respect of the obligations of the Owner or any security for those obligations or otherwise) or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise without limitation, the liability of the Guarantor under this Clause will continue or be reinstated as if the discharge or arrangement had not occurred.
|
|
(b)
|
Each Finance Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration.
|
3.4
|
Waiver of defences
|
|
(a)
|
any time or waiver granted to, or composition with, any person;
|
|
(b)
|
any release of any person under the terms of any composition or arrangement;
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person;
|
|
(d)
|
any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(e)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;
|
|
any amendment of a Finance Document or any other document or security;
|
|
(g)
|
any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or
|
|
(h)
|
any insolvency or similar proceedings.
|
3.5
|
Immediate recourse
|
|
(a)
|
The Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or
|
|
(b)
|
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
|
3.6
|
Appropriations
|
|
(a)
|
(i)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) against those amounts; or
|
|
(ii)
|
apply and enforce them in such manner and order as it sees fit (whether against those amounts or otherwise); and
|
|
(b)
|
hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause.
|
3.7
|
Non-competition
|
|
(a)
|
all amounts which may be or become payable by the Owner under or in connection with the Finance Documents have been irrevocably paid in full; or
|
|
(b)
|
the Security Trustee otherwise directs,
|
|
(i)
|
be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf);
|
|
(ii)
|
be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of the Guarantor's liability under this Clause;
|
|
(iii)
|
claim, rank, prove or vote as a creditor of the Owner or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or
|
|
(iv)
|
receive, claim or have the benefit of any payment, distribution or security from or on account of the Owner, or exercise any right of set-off as against the Owner.
|
3.8
|
Additional security
|
4.
|
NATURE OF A FINANCE PARTY'S OBLIGATIONS
|
|
(a)
|
the obligations of a Finance Party under the Finance Documents are several;
|
|
(b)
|
failure by a Finance Party to perform its obligations does not affect the obligations of any other Party under the Finance Documents;
|
|
(c)
|
no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;
|
|
(d)
|
the rights of a Finance Party under the Finance Documents are separate and independent rights;
|
|
(e)
|
a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights; and
|
|
(f)
|
a debt arising under the Finance Documents to a Finance Party is a separate and independent debt.
|
5.
|
TAXES
|
5.1
|
General
|
5.2
|
Tax gross-up
|
|
(a)
|
The Guarantor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.
|
|
(b)
|
If the Guarantor or a Lender is aware that it must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it must promptly notify the Security Trustee. The Security Trustee must then promptly notify the affected Parties.
|
|
(c)
|
If a Tax Deduction is required by law to be made by the Guarantor or the Security Trustee, the amount of the payment due from the Guarantor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
|
(d)
|
If the Guarantor is required to make a Tax Deduction, the Guarantor must make the minimum Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by law.
|
|
(e)
|
Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Guarantor must deliver to the Security Trustee
|
5.3
|
Value added taxes
|
|
(a)
|
Any amount payable under a Finance Document by the Guarantor is exclusive of any value added tax or any other Tax of a similar nature which might be chargeable in connection with that amount. If any such Tax is chargeable, the Guarantor must pay to the Finance Party (in addition to and at the same time as paying that amount) an amount equal to the amount of that Tax.
|
|
(b)
|
Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party must also at the same time pay and indemnify the Finance Party against all value added tax or any other Tax of a similar nature incurred by the Finance Party in respect of those costs or expenses but only to the extent that the Finance Party (acting reasonably) determines that it is not entitled to credit or repayment from the relevant tax authority in respect of the Tax.
|
5.4
|
Stamp taxes
|
6.
|
PAYMENTS
|
6.1
|
Place
|
6.2
|
Funds
|
6.3
|
Distribution
|
|
(a)
|
Each payment received by the Security Trustee under this Guarantee for another Party must, except as provided below, be made available by the Security Trustee to that Party by payment (as soon as practicable after receipt) to its account with such office or bank in London, as it may notify to the Security Trustee for this purpose by not less than five Business Days' prior notice.
|
|
(b)
|
The Security Trustee may apply any amount received by it for the Guarantor in or towards payment (as soon as practicable after receipt) of any amount due from the Guarantor under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.
|
|
(c)
|
Where a sum is paid to the Security Trustee under this Guarantee for another Party, the Security Trustee is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Security Trustee may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum has not been received by the Security Trustee, that Party must immediately on demand by the Security Trustee refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Security Trustee at a rate calculated by the Security Trustee to reflect its cost of funds.
|
6.4
|
Currency
|
|
(a)
|
Any amount under this Guarantee payable in respect of any other amount payable under the Finance Documents under this Guarantee is payable under this Guarantee in the same currency as that other amount.
|
|
(b)
|
Each other amount payable under this Guarantee is payable in Dollars.
|
6.5
|
No set-off or counterclaim
|
6.6
|
Business Days
|
|
(a)
|
If a payment under this Guarantee is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not) or whatever day the Security Trustee determines is market practice.
|
|
(b)
|
During any extension of the due date for payment of any principal under this Guarantee interest is payable on that principal at the rate payable on the original due date.
|
6.7
|
Partial payments
|
6.8
|
Timing of payments
|
6.9
|
Interest on overdue amounts
|
7.
|
REPRESENTATIONS AND WARRANTIES
|
7.1
|
Representations and warranties
|
7.2
|
Status
|
|
(a)
|
It is a limited liability company, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.
|
|
(b)
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
7.3
|
Powers and authority
|
7.4
|
Legal validity
|
7.5
|
Non-conflict
|
|
(a)
|
any law or regulation applicable to it;
|
|
(b)
|
its or any of its Subsidiaries' constitutional documents; or
|
|
(c)
|
any document which is binding upon it or any of its Subsidiaries or any of its or its Subsidiaries' assets.
|
7.6
|
No default
|
|
(a)
|
No Default is outstanding or will result from the entry into of, or the performance of any transaction contemplated by, this Guarantee; and
|
|
(b)
|
no other event or circumstance is outstanding which constitutes a default under any document which is binding on it or any of its Subsidiaries or any of its or its Subsidiaries' assets to an extent or in a manner which has or is reasonably likely to have a Material Adverse Effect.
|
7.7
|
Authorisations
|
7.8
|
Litigation
|
7.9
|
Taxes on payments
|
7.10
|
Stamp duties
|
7.11
|
Immunity
|
|
(a)
|
The entry into by it of this Guarantee constitutes, and the exercise by it of its rights and performance of its obligations under this Guarantee will constitute, private and commercial acts performed for private and commercial purposes; and
|
|
(b)
|
it will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in its jurisdiction of incorporation in relation to this Guarantee.
|
7.12
|
No adverse consequences
|
|
(a)
|
It is not necessary under the laws of its jurisdiction of incorporation:
|
|
(i)
|
in order to enable any Finance Party to enforce its rights under this Guarantee; or
|
|
(ii)
|
by reason of the entry into of this Guarantee or the performance by it of its obligations under this Guarantee,
|
|
(b)
|
no Finance Party is or will be deemed to be resident, domiciled or carrying on business in its jurisdiction of incorporation by reason only of the entry into, performance and/or enforcement of this Guarantee.
|
7.13
|
Jurisdiction/governing law
|
|
(a)
|
Its:
|
|
(i)
|
irrevocable submission under this Guarantee to the jurisdiction of the courts of England;
|
|
(ii)
|
agreement that this Guarantee is governed by English law; and
|
|
(iii)
|
agreement not to claim any immunity to which it or its assets may be entitled,
|
|
are legal, valid and binding under the laws of its jurisdiction of incorporation; and
|
|
(b)
|
any judgment obtained in England will be recognised and be enforceable by the courts of its jurisdiction of incorporation.
|
7.14
|
Financial statements
|
|
(a)
|
have been prepared in accordance with IFRS or US GAAP, consistently applied; and
|
|
(b)
|
give a true and fair view of its financial condition (consolidated, if applicable) as at the date to which they were drawn up,
|
7.15
|
No material adverse change
|
7.16
|
Times for making representations and warranties
|
|
(a)
|
The representations and warranties set out in this Clause are made by the Guarantor on the date of this Guarantee.
|
|
(b)
|
Unless a representation and warranty is expressed to be given at a specific date, each representation and warranty is deemed to be repeated by the Guarantor on each Utilisation Date and on the last day of each Interest Period.
|
|
(c)
|
When a representation and warranty is repeated, it is applied to the circumstances existing at the time of repetition.
|
8.
|
UNDERTAKINGS
|
8.1
|
General
|
8.2
|
Information provided to be accurate
|
8.3
|
Provision of financial statements
|
|
(a)
|
as soon as possible, but in no event later than 150 days after the end of each financial year of the Guarantor, the audited consolidated financial statements of the Guarantor for that financial year; and
|
|
(b)
|
as soon as possible, but in no event later than 60 days after the end of quarter of each financial year of the Guarantor ending after the date of this Guarantee, the interim unaudited consolidated financial statements of the Guarantor for that quarter; and
|
|
(c)
|
such other financial information (including information as to its financial condition, commitments and operations) in connection with the Guarantor as the Security Trustee may reasonably require.
|
8.4
|
Form of financial statements
|
|
(a)
|
All financial statements (audited and unaudited) delivered under Clause 8.3 must:
|
|
(i)
|
be prepared in accordance with all applicable laws and US GAAP, consistently applied;
|
|
(ii)
|
give a true and fair view of the state of affairs of the Guarantor and its subsidiaries at the date of those accounts and of their profit for the period to which those accounts relate; and
|
|
(iii)
|
fully disclose or provide for all significant liabilities of the Guarantor and the Group.
|
|
(b)
|
The Guarantor must notify the Security Trustee of any change to the basis on which the audited financial statements are prepared.
|
8.5
|
Shareholder and creditor notices
|
8.6
|
Consents
|
|
(a)
|
for the Guarantor to perform its obligations under this Guarantee;
|
|
(b)
|
for the validity or enforceability of this Guarantee,
|
8.7
|
Maintenance of Security interests
|
|
(a)
|
at its own cost, do all that it reasonably can to ensure that this Guarantee validly creates the obligations which it purports to create; and
|
|
(b)
|
without limiting the generality of paragraph (a) above, at its own cost, promptly register, file, record or enrol this Guarantee with any court or authority in all relevant jurisdictions, pay any stamp, registration or similar tax in all relevant jurisdictions in respect of this Guarantee, give any notice or take any other step which may be or become necessary or desirable for this Guarantee to be valid, enforceable or admissible in evidence.
|
8.8
|
Notification of litigation
|
8.9
|
Notification of default
|
|
(a)
|
the occurrence of a Default; or
|
|
(b)
|
any matter which indicates that a Default may have occurred,
|
8.10
|
Negative undertakings
|
|
(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 or return of share capital Provided that the Guarantor may in any financial year pay a dividend or make any other form of distribution which does not exceed in aggregate 50 per cent. of the Net Income for such financial year subject to no Event of Default having occurred which is continuing at the relevant time or resulting from the payment of a dividend or the making of any other form of distribution.
|
8.11
|
Negative pledge and pari passu ranking
|
|
(a)
|
not, and must procure that the Owner will not, create or permit to arise any Security Interest over any asset present or future except
|
|
(i)
|
Security Interests created or permitted by the Finance Documents;
|
|
(ii)
|
Permitted Liens; and
|
|
(iii)
|
in the case of the Guarantor, those arising in the normal course of its business of acquiring, financing and operating vessels and making investments within the shipping and oil and gas sector;
|
|
(b)
|
not incur or grant any Financial Indebtedness or any other financial support in connection with any vessel owned by Cardiff Marine Inc. or any of its Affiliates; and
|
|
(c)
|
procure that its liabilities under this Guarantee do and will rank at least pari passu with all its other present and future liabilities, except for liabilities which are mandatorily preferred by law.
|
8.12
|
No disposal of assets, change of business
|
8.13
|
No merger etc
|
9.
|
THE ADMINISTRATIVE PARTIES
|
10.
|
EVIDENCE AND CALCULATIONS
|
10.1
|
Accounts
|
10.2
|
Certificates and determinations
|
10.3
|
Calculations
|
11.
|
INDEMNITIES
|
11.1
|
Currency indemnity
|
|
(a)
|
The Guarantor must, as an independent obligation, indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:
|
|
(i)
|
that Finance Party receiving an amount in respect of the Owner's liability under the Finance Documents; or
|
|
(ii)
|
that liability being converted into a claim, proof, judgment or order,
|
|
(b)
|
Unless otherwise required by law, the Guarantor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.
|
12.
|
AMENDMENTS AND WAIVERS
|
12.1
|
Procedure
|
|
(a)
|
Except as provided in this Clause, any term of this Guarantee may be amended or waived with the agreement of the Guarantor and the Security Trustee. The Security Trustee (acting on the instructions of an Instructing Group (as defined in the DPP), or otherwise in accordance with this Guarantee) may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.
|
|
(b)
|
The Security Trustee must promptly notify the other Parties of any amendment or waiver effected by it under paragraph (a) above. Any such amendment or waiver is binding on all the Parties.
|
12.2
|
Exceptions
|
|
(a)
|
An amendment or waiver which relates to:
|
|
(i)
|
the definition of an Instructing Group in so far as it applies to this Guarantee;
|
|
(ii)
|
Clause 2 (Guarantee) of this Guarantee;
|
|
(iii)
|
a release of the Owner or the Guarantor other than in accordance with the terms of this Guarantee;
|
|
(iv)
|
a term of this Guarantee which expressly requires the consent of each Lender;
|
|
(v)
|
the right of a Lender to assign or transfer its rights or obligations under this Guarantee or the Finance Documents; or
|
|
(vi)
|
this Clause,
|
|
(b)
|
An amendment or waiver which relates to the rights or obligations of an Administrative Party may only be made with the consent of that Administrative Party.
|
12.3
|
Waivers and remedies cumulative
|
|
(a)
|
may be exercised as often as necessary;
|
|
(b)
|
are cumulative and not exclusive of its rights under the general law; and
|
|
(c)
|
may be waived only in writing and specifically.
|
13.
|
CHANGES TO THE PARTIES
|
13.1
|
Assignments and transfers by the Guarantor
|
13.2
|
Assignments and transfers by Lenders
|
|
(a)
|
The Guarantor consents to any assignment, transfer, novation or change in Facility Office made by a Lender under the Credit Agreement.
|
|
(b)
|
Any reference in this Guarantee to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under the Credit Agreement and its Commitment has been cancelled or reduced to nil.
|
14.
|
DISCLOSURE OF INFORMATION
|
|
(a)
|
Each Finance Party must keep confidential any information supplied to it by or on behalf of the Guarantor in connection with this Guarantee. However, a Finance Party is entitled to disclose information:
|
|
(i)
|
which is publicly available, other than as a result of a breach by that Finance Party of this Clause;
|
|
(ii)
|
in connection with any legal or arbitration proceedings;
|
|
(iii)
|
if required to do so under any law or regulation;
|
|
(iv)
|
to a governmental, banking, taxation or other regulatory authority;
|
|
(v)
|
to its professional advisers;
|
|
(vi)
|
to the extent allowed under paragraph (b) below; or
|
|
(vii)
|
with the agreement of the Guarantor.
|
|
(b)
|
A Finance Party may disclose to an Affiliate or any person (a third party) with (or through) whom that Finance Party enters into (or may enter into) any kind of transfer, participation or hedge agreement in relation to this Guarantee or any other transaction under which payments are to be made by reference to this Guarantee or the Guarantor:
|
|
(i)
|
a copy of this Guarantee; and
|
|
(ii)
|
any information which that Finance Party has acquired under or in connection with this Guarantee.
|
|
(c)
|
This Clause supersedes any previous confidentiality undertaking given by a Finance Party in connection with this Guarantee prior to it becoming a Party.
|
15.
|
SET-OFF
|
16.
|
PRO RATA SHARING
|
16.1
|
Redistribution
|
|
(a)
|
the recovering Finance Party must, within three Business Days, supply details of the recovery to the Security Trustee;
|
|
(b)
|
the Security Trustee must calculate whether the recovery is in excess of the amount which the recovering Finance Party would have received if the recovery had been received and distributed by the Security Trustee in accordance with the DPP without taking account of any Tax which would be imposed on the Security Trustee in relation to the recovery or distribution; and
|
|
(c)
|
the recovering Finance Party must pay to the Security Trustee an amount equal to the excess (the redistribution).
|
16.2
|
Effect of redistribution
|
|
(a)
|
The Security Trustee must treat a redistribution as if it were a payment by the Guarantor under this Guarantee and distribute it among the Finance Parties, other than the recovering Finance Party, accordingly.
|
|
(b)
|
When the Security Trustee makes a distribution under paragraph (a) above, the recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in that redistribution.
|
|
(c)
|
If and to the extent that the recovering Finance Party is not able to rely on any rights of subrogation under paragraph (b) above, the Guarantor will owe the recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged.
|
|
(d)
|
If:
|
|
(i)
|
a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to the Guarantor; and
|
|
(ii)
|
the recovering Finance Party has paid a redistribution in relation to that recovery,
|
16.3
|
Exceptions
|
|
(a)
|
it would not, after the payment, have a valid claim against the Guarantor in the amount of the redistribution; or
|
|
(b)
|
it would be sharing with another Finance Party any amount which the recovering Finance Party has received or recovered as a result of legal or arbitration proceedings, where:
|
|
(i)
|
the recovering Finance Party notified the Security Trustee of those proceedings; and
|
|
(ii)
|
the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.
|
17.
|
SEVERABILITY
|
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of this Guarantee; or
|
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other term of this Guarantee.
|
18.
|
COUNTERPARTS
|
19.
|
NOTICES
|
19.1
|
In writing
|
|
(a)
|
Any communication in connection with this Guarantee must be in writing and, unless otherwise stated, may be given:
|
|
(i)
|
in person, by post or fax; or
|
|
(ii)
|
to the extent agreed by the Parties making and receiving communication. by e-mail or other electronic communication.
|
|
(b)
|
For the purpose of this Guarantee, an electronic communication will be treated as being in writing.
|
|
(c)
|
Unless it is agreed to the contrary, any consent or agreement required under this Guarantee must be given in writing.
|
19.2
|
Contact details
|
|
(a)
|
Except as provided below, the contact details of each Party for all communications in connection with this Guarantee are those notified by that Party for this purpose to the Security Trustee on or before the date it becomes a Party.
|
|
(b)
|
The contact details of the Guarantor for this purpose are:
|
Address:
|
c/o Dryships Inc.
|
|
80 Kifissias Avenue
|
||
GR-151 25 Amaroussion
|
||
Greece
|
||
Fax number:
|
+30 210 8090575
|
|
Attention:
|
Mr. Ziad Nakhleh
|
|
(c)
|
The contact details of the Security Trustee for this purpose are:
|
Address:
|
c/o Deutsche Bank Luxembourg S.A.
|
|
2, Boulevard Konrad Adenauer
|
||
L-1115 Luxembourg
|
||
Luxembourg
|
||
Fax number:
|
+352 42122 95771
|
|
Attention:
|
Banu Ozkutan / Franz-Josef Ewerhardy, International Loans and Agency Services
|
|
(d)
|
Any Party may change its contact details by giving five Business Days' notice to the Security Trustee or (in the case of the Security Trustee) to the other Parties.
|
|
(e)
|
Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.
|
19.3
|
Effectiveness
|
|
(a)
|
Except as provided below, any communication in connection with this Guarantee will be deemed to be given as follows:
|
|
(i)
|
if delivered in person, at the time of delivery;
|
|
(ii)
|
if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope;
|
|
(iii)
|
if by fax, when received in legible form; and
|
|
(iv)
|
if by e-mail or any other electronic communication, when received in legible form.
|
|
(b)
|
A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.
|
|
(c)
|
A communication to the Security Trustee will only be effective on actual receipt by it.
|
|
(d)
|
All communications under this Guarantee to or from the Guarantor must be sent through the Security Trustee.
|
20.
|
EXPENSES
|
21.
|
LANGUAGE
|
|
(a)
|
Any notice given in connection with this Guarantee must be in English.
|
|
(b)
|
Any other document provided in connection with a Finance Document must be:
|
|
(i)
|
in English; or
|
|
(ii)
|
(unless the Security Trustee otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.
|
22.
|
GOVERNING LAW
|
23.
|
ENFORCEMENT
|
23.1
|
Jurisdiction
|
|
(a)
|
The English courts have exclusive jurisdiction to settle any dispute in connection this Guarantee or any non-contractual obligations in connection with it.
|
|
(b)
|
The English courts are the most appropriate and convenient courts to settle any such dispute in connection with this Guarantee and any Finance Document. The Guarantor agrees not to argue to the contrary and waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Guarantee and any Finance Document.
|
|
(c)
|
This Clause is for the benefit of the Finance Parties only. To the extent allowed by law, a Finance Party may take:
|
|
(i)
|
proceedings in any other court; and
|
|
(ii)
|
concurrent proceedings in any number of jurisdictions.
|
|
(d)
|
References in this Clause to a dispute in connection with a Finance Document includes any dispute as to the existence, validity or termination of that Finance Document.
|
23.2
|
Service of process
|
|
(a)
|
The Guarantor irrevocably appoints Ince Process Agents Ltd of International House, 5th Floor, 1 St. Katharine's Way, London EIW 1AY (attn: Mr. Michael Volikas) as its agent under the Finance Documents for service of process in any proceedings before the English courts in connection with any Finance Document.
|
|
(b)
|
If any person appointed as process agent under this Clause is unable for any reason to so act, the Guarantor must immediately (and in any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Security Trustee. Failing this, the Security Trustee may appoint process another agent for this purpose.
|
|
(c)
|
The Guarantor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
|
|
(d)
|
This Clause does not affect any other method of service allowed by law.
|
23.3
|
Waiver of immunity
|
|
(a)
|
agrees not to claim any immunity from proceedings brought by a Finance Party against it in relation to a Finance Document 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 those proceedings; and
|
|
(c)
|
waives all rights of immunity in respect of it or its assets.
|
24.
|
MISCELLANEOUS
|
SIGNED as a deed by
|
)
|
/s/ Dimitrios Glynos
|
|||
DRYSHIPS INC.
|
)
|
Dryships Inc. by its attorney
|
|||
acting as attorney Dimitrios Glynos
|
)
|
||||
in the presence of:
|
)
|
Witness's Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-law
|
|||
Address:
|
52, Ag. Konstantinous Street, 15124 Marousi
|
||
Athens, Greece
|
|||
Tel.:
|
+30 210 6140810
|
||
Fax:
|
+30 210 6140267
|
Security Trustee
|
||||||||
By:
|
/s/ Carola Roth
|
/s/ Dr. Bastian [Illegible]
|
||||||
Carola Roth Dr . Bastian [Illegible]
|
|
|||||||
as attorney for
|
||||||||
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHÄFT
|
||||||||
Facility Agent for itself and on behalf of the Original Lenders
|
||||||||
By:
|
/s/ M. Heinemann
|
|||||||
M. Heinemann
|
||||||||
as attorney for
|
||||||||
DEUTSCHE BANK LUXEMBOURG S.A.
|
||||||||
CONTENTS |
Clause
|
Page
|
|
1
|
Interpretation
|
1
|
2
|
Effectiveness
|
2
|
3
|
Guarantee and indemnity
|
2
|
4
|
Nature of a Finance Party’s obligations
|
4
|
5
|
Taxes
|
5
|
6
|
Payments
|
7
|
7
|
Representations and warranties
|
8
|
8
|
Undertakings
|
10
|
9
|
The Administrative Parties
|
13
|
10
|
Evidence and calculations
|
13
|
11
|
Indemnities
|
13
|
12
|
Amendments and waivers
|
14
|
13
|
Changes to the Parties
|
14
|
14
|
Disclosure of information
|
15
|
15
|
Set-off
|
15
|
16
|
Pro rata sharing
|
16
|
17
|
Severability
|
17
|
18
|
Counterparts
|
17
|
19
|
Notices
|
17
|
20
|
Expenses
|
18
|
21
|
Language
|
19
|
22
|
Governing law
|
19
|
23
|
Enforcement
|
19
|
24
|
Miscellaneous
|
20
|
Schedules
|
||
1.
|
Original Lenders
|
21
|
Signatories
|
22
|
|
(1)
|
DRYSHIPS INC., a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, MH96960 Marshall Islands (the Guarantor);
|
(2)
|
DEUTSCHE BANK LUXEMBOURG S.A. as facility agent for itself and on behalf of the financial institutions listed in Schedule 1 (Original Lenders) as original lenders (the Original Lenders) (the Facility Agent); and
|
(3)
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHÄFT as agent and trustee for the Finance Parties (the Security Trustee).
|
1.1
|
Definitions
|
|
(a)
|
the Credit Agreement;
|
|
(b)
|
each Security Document;
|
|
(c)
|
the DPP;
|
|
(d)
|
the GIEK Security Trustee Letter;
|
|
(e)
|
each Fee Letter;
|
|
(f)
|
each Transfer Certificate;
|
|
(g)
|
the Account Bank Mandate; and
|
|
(h)
|
any other document designated as such by the Facility Agent and the Owner provided that the Swap Agreement shall not at any time be designated as a Finance Document for the purposes of this Guarantee by the Facility Agent and the Owner.
|
1.2
|
Construction
|
|
(a)
|
Capitalised terms defined in the Credit Agreement have, unless expressly defined in this Guarantee, the same meaning in this Guarantee.
|
|
(b)
|
The provisions of clause 1.2 (Construction) of the Credit Agreement apply to this Guarantee as though they were set out in full in this Guarantee, except that references to the Credit Agreement are to be construed as references to this Guarantee.
|
3.1
|
Guarantee and indemnity
|
|
(a)
|
The Guarantor irrevocably and unconditionally guarantees to each Finance Party the obligations of the Owner to each Finance Party which become due under the Finance Documents plus other amounts which become payable in connection therewith under other provisions of this Guarantee (the Post-Delivery Guaranteed Amount).
|
|
(b)
|
The Guarantor undertakes with each Finance Party that, whenever the Owner does not pay any such amount expressed to be payable by it under a Finance Document, it must immediately on demand by the Security Trustee pay that amount as if it were the principal obligor in respect of that amount.
|
|
(c)
|
The Guarantor agrees with each Finance Party that if, for any reason, any amount claimed by a Finance Party under this Clause is not recoverable from the Guarantor on the basis of a guarantee then the Guarantor will be liable as a principal debtor and primary obligor to indemnify that Finance Party in respect of any loss it incurs as a result of the Owner failing to pay any such amount expressed to be payable by it under a Finance Document on the date when it ought to have been paid. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause had the amount claimed been recoverable on the basis of a guarantee.
|
|
(d)
|
The aggregate amount payable by the Guarantor under this Clause 3.1 shall not exceed USS214,000,000 plus other amounts which become payable in connection therewith under other provisions of this Guarantee.
|
3.2
|
Continuing guarantee
|
3.3
|
Reinstatement
|
|
(a)
|
If any discharge (whether in respect of the obligations of the Owner or any security for those obligations or otherwise) or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise without limitation, the liability of the Guarantor under this Clause will continue or be reinstated as if the discharge or arrangement had not occurred.
|
|
(b)
|
Each Finance Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration.
|
3.4
|
Waiver of defences
|
|
(a)
|
any time or waiver granted to, or composition with, any person;
|
|
(b)
|
any release of any person under the terms of any composition or arrangement;
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person;
|
|
(d)
|
any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(e)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;
|
|
(f)
|
any amendment of a Finance Document or any other document or security;
|
|
(g)
|
any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or
|
|
(h)
|
any insolvency or similar proceedings.
|
3.5
|
Immediate recourse
|
|
(a)
|
The Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person before claiming from the Guarantor under this Clause.
|
|
(b)
|
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
|
3.6
|
Appropriations
|
|
(a)
|
(i)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) against those amounts; or
|
|
(ii)
|
apply and enforce them in such manner and order as it sees fit (whether against those amounts or otherwise); and
|
|
(b)
|
hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor’s liability under this Clause.
|
3.7
|
Non-competition
|
|
(a)
|
all amounts which may be or become payable by the Owner under or in connection with the Finance Documents have been irrevocably paid in full; or
|
|
(b)
|
the Security Trustee otherwise directs,
|
|
(i)
|
be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf);
|
|
(ii)
|
be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of the Guarantor’s liability under this Clause;
|
|
(iii)
|
claim, rank, prove or vote as a creditor of the Owner or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or
|
|
(iv)
|
receive, claim or have the benefit of any payment, distribution or security from or on account of the Owner, or exercise any right of set-off as against the Owner.
|
3.8
|
Additional security
|
|
(a)
|
the obligations of a Finance Party under the Finance Documents are several;
|
|
(b)
|
failure by a Finance Party to perform its obligations does not affect the obligations of any other Party under the Finance Documents;
|
|
(c)
|
no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;
|
|
(d)
|
the rights of a Finance Party under the Finance Documents are separate and independent rights;
|
|
(e)
|
a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights; and
|
|
(f)
|
a debt arising under the Finance Documents to a Finance Party is a separate and independent debt.
|
5.1
|
General
|
5.2
|
Tax gross-up
|
|
(a)
|
The Guarantor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.
|
|
(b)
|
If the Guarantor or a Lender is aware that it must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it must promptly notify the Security Trustee. The Security Trustee must then promptly notify the affected Parties.
|
|
(c)
|
If a Tax Deduction is required by law to be made by the Guarantor or the Security Trustee, the amount of the payment due from the Guarantor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
|
(d)
|
If the Guarantor is required to make a Tax Deduction, the Guarantor must make the minimum Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by law.
|
|
(e)
|
Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Guarantor must deliver to the Security Trustee for the relevant Finance Party evidence satisfactory to that Finance Party (acting reasonably) that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.
|
5.3
|
Value added taxes
|
|
(a)
|
Any amount payable under a Finance Document by the Guarantor is exclusive of any value added tax or any other Tax of a similar nature which might be chargeable in connection with that amount. If any such Tax is chargeable, the Guarantor must pay to the Finance Party (in addition to and at the same time as paying that amount) an amount equal to the amount of that Tax.
|
|
(b)
|
Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party must also at the same time pay and indemnify the Finance Party against all value added tax or any other Tax of a similar nature incurred by the Finance Party in respect of those costs or expenses but only to the extent that the Finance Party (acting reasonably) determines that it is not entitled to credit or repayment from the relevant tax authority in respect of the Tax.
|
5.4
|
Stamp taxes
|
6.1
|
Place
|
6.2
|
Funds
|
6.3
|
Distribution
|
|
(a)
|
Each payment received by the Security Trustee under this Guarantee for another Party must, except as provided below, be made available by the Security Trustee to that Party by payment (as soon as practicable after receipt) to its account with such office or bank in London, as it may notify to the Security Trustee for this purpose by not less than five Business Days’ prior notice.
|
|
(b)
|
The Security Trustee may apply any amount received by it for the Guarantor in or towards payment (as soon as practicable after receipt) of any amount due from the Guarantor under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.
|
|
(c)
|
Where a sum is paid to the Security Trustee under this Guarantee for another Party, the Security Trustee is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Security Trustee may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum has not been received by the Security Trustee, that Party must immediately on demand by the Security Trustee refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Security Trustee at a rate calculated by the Security Trustee to reflect its cost of funds.
|
6.4
|
Currency
|
|
(a)
|
Any amount under this Guarantee payable in respect of any other amount payable under the Finance Documents under this Guarantee is payable under this Guarantee in the same currency as that other amount.
|
|
(b)
|
Each other amount payable under this Guarantee is payable in Dollars.
|
6.5
|
No set-off or counterclaim
|
6.6
|
Business Days
|
|
(a)
|
If a payment under this Guarantee is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not) or whatever day the Security Trustee determines is market practice.
|
|
(b)
|
During any extension of the due date for payment of any principal under this Guarantee interest is payable on that principal at the rate payable on the original due date.
|
6.7
|
Partial payments
|
6.8
|
Timing of payments
|
6.9
|
Interest on overdue amounts
|
7.1
|
Representations and warranties
|
7.2
|
Status
|
|
(a)
|
It is a limited liability company, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.
|
|
(b)
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
7.3
|
Powers and authority
|
7.4
|
Legal validity
|
7.5
|
Non-conflict
|
|
(a)
|
any law or regulation applicable to it;
|
|
(b)
|
its or any of its Subsidiaries’ constitutional documents; or
|
|
(c)
|
any document which is binding upon it or any of its Subsidiaries or any of its or its Subsidiaries’ assets.
|
7.6
|
No default
|
|
(a)
|
No Default is outstanding or will result from the entry into of, or the performance of any transaction contemplated by this Guarantee; and
|
|
(b)
|
no other event or circumstance is outstanding which constitutes a default under any document which is binding on it or any of its Subsidiaries or any of its or its Subsidiaries’ assets to an extent or in a manner which has or is reasonably likely to have a Material Adverse Effect.
|
7.7
|
Authorisations
|
7.8
|
Litigation
|
7.9
|
Taxes on payments
|
7.10
|
Stamp duties
|
7.11
|
Immunity
|
|
(a)
|
The entry into by it of this Guarantee constitutes, and the exercise by it of its rights and performance of its obligations under this Guarantee will constitute, private and commercial acts performed for private and commercial purposes; and
|
|
(b)
|
it will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in its jurisdiction of incorporation in relation to this Guarantee.
|
7.12
|
No adverse consequences
|
|
(a)
|
It is not necessary under the laws of its jurisdiction of incorporation:
|
|
(i)
|
in order to enable any Finance Party to enforce its rights under this Guarantee; or
|
|
(ii)
|
by reason of the entry into of this Guarantee or the performance by it of its obligations under this Guarantee,
|
|
(b)
|
no Finance Party is or will be deemed to be resident, domiciled or carrying on business in its jurisdiction of incorporation by reason only of the entry into, performance and/or enforcement of this Guarantee.
|
7.13
|
Jurisdiction/governing law
|
|
(a)
|
Its:
|
|
(i)
|
irrevocable submission under this Guarantee to the jurisdiction of the courts of England;
|
|
(ii)
|
agreement that this Guarantee is governed by English law; and
|
|
(iii)
|
agreement not to claim any immunity to which it or its assets may be entitled,
|
|
(b)
|
any judgment obtained in England will be recognised and be enforceable by the courts of its jurisdiction of incorporation.
|
7.14
|
Financial statements
|
|
(a)
|
have been prepared in accordance with IFRS or US GAAP, consistently applied; and
|
|
(b)
|
give a true and fair view of its financial condition (consolidated, if applicable) as at the date to which they were drawn up,
|
7.15
|
No material adverse change
|
7.16
|
Times for making representations and warranties
|
|
(a)
|
The representations and warranties set out in this Clause are made by the Guarantor on the date of this Guarantee.
|
|
(b)
|
Unless a representation and warranty is expressed to be given at a specific date, each representation and warranty is deemed to be repeated by the Guarantor on each Utilisation Date and on the last day of each Interest Period.
|
|
(c)
|
When a representation and warranty is repeated, it is applied to the circumstances existing at the time of repetition.
|
8.1
|
General
|
8.2
|
Information provided to be accurate
|
8.3
|
Provision of financial statements
|
|
(a)
|
as soon as possible, but in no event later than 150 days after the end of each financial year of the Guarantor, the audited consolidated financial statements of the Guarantor for that financial year; and
|
|
(b)
|
as soon as possible, but in no event later than 60 days after the end of quarter of each financial year of the Guarantor ending after the date of this Guarantee, the interim unaudited consolidated financial statements of the Guarantor for that quarter; and
|
|
(c)
|
such other financial information (including information as to its financial condition, commitments and operations) in connection with the Guarantor as the Security Trustee may reasonably require.
|
8.4
|
Form of financial statements
|
|
(a)
|
All financial statements (audited and unaudited) delivered under Clause 8.3 must:
|
|
(i)
|
be prepared in accordance with all applicable laws and US GAAP, consistently applied;
|
|
(ii)
|
give a true and fair view of the state of affairs of the Guarantor and its subsidiaries at the date of those accounts and of their profit for the period to which those accounts relate; and
|
|
(iii)
|
fully disclose or provide for all significant liabilities of the Guarantor and the Group.
|
|
(b)
|
The Guarantor must notify the Security Trustee of any change to the basis on which the audited financial statements are prepared.
|
8.5
|
Shareholder and creditor notices
|
8.6
|
Consents
|
|
(a)
|
for the Guarantor to perform its obligations under this Guarantee;
|
|
(b)
|
for the validity or enforceability of this Guarantee , and the Guarantor will comply with the terms of all such consents.
|
8.7
|
Maintenance of Security Interests
|
|
(a)
|
At its own cost, do all that is reasonable can to ensure that this Guarantee validly creates the obligations which it purports to create; and
|
|
(b)
|
without limiting the generality of paragraph (a) above, at its own cost, promptly register, file, record or enrol this Guarantee with any court or authority in all relevant jurisdictions, pay any stamp, registration or similar tax in all relevant jurisdictions in respect of this Guarantee, give any notice or take any other step which may be or become necessary or desirable for this Guarantee to be valid, enforceable or admissible in evidence.
|
8.8
|
Notification of litigation
|
8.9
|
Notification of default
|
|
(a)
|
the occurrence of a Default; or
|
|
(b)
|
any matter which indicates that a Default may have occurred, and will thereafter keep the Security Trustee fully up-to-date with all developments.
|
8.10
|
Negative undertakings
|
|
(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 or return of share capital Provided that the Guarantor may in any financial year pay a dividend or make any other form of distribution which does not exceed in aggregate 50 per cent. of the Net Income for such financial year subject to no Event of Default having occurred which is continuing at the relevant time or resulting from the payment of a dividend or the making of any other form of distribution.
|
8.11
|
Negative pledge and pari passu ranking
|
|
(a)
|
not, and must procure that the Owner will not, create or permit to arise any Security Interest over any asset present or future except
|
|
(i)
|
Security Interests created or permitted by the Finance Documents;
|
|
(ii)
|
Permitted Liens; and
|
|
(iii)
|
in the case of the Guarantor, those arising in the normal course of its business of acquiring, financing and operating vessels and making investments within the shipping and oil and gas sector;
|
|
(b)
|
not incur or grant any Financial Indebtedness or any other financial support in connection with any vessel owned by Cardiff Marine Inc. or any of its Affiliates; and
|
|
(c)
|
procure that its liabilities under this Guarantee do and will rank at least part passu with all its other present and future liabilities, except for liabilities which are mandatorily preferred by law.
|
8.12
|
No disposal of assets, change of business
|
8.13
|
No merger etc
|
10.1
|
Certificates and determinations
|
10.2
|
Calculations
|
11.1
|
Currency indemnity
|
|
(a)
|
The Guarantor must, as an independent obligation, indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:
|
|
(i)
|
that Finance Party receiving an amount in respect of the Owner’s liability under the Finance Documents; or
|
|
(ii)
|
that liability being converted into a claim, proof, judgment or order,
|
|
(b)
|
Unless otherwise required by law, the Guarantor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.
|
|
(a)
|
Except as provided in this Clause, any term of this Guarantee may be amended or waived with the agreement of the Guarantor and the Security Trustee. The Security Trustee (acting on the instructions of an Instructing Group (as defined in the DPP), or otherwise in accordance with this Guarantee) may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.
|
|
(b)
|
The Security Trustee must promptly notify the other Parties of any amendment or waiver effected by it under paragraph (a) above. Any such amendment or waiver is binding on all the Parties.
|
12.2
|
Exceptions
|
|
(a)
|
An amendment or waiver which relates to:
|
|
(i)
|
the definition of an Instructing Group in so far as it applies to this Guarantee;
|
|
(ii)
|
Clause 2 (Guarantee) of this Guarantee;
|
|
(iii)
|
a release of the Owner or the Guarantor other than in accordance with the terms of this Guarantee;
|
|
(iv)
|
a term of this Guarantee which expressly requires the consent of each Lender;
|
|
(v)
|
the right of a Lender to assign or transfer its rights or obligations under this Guarantee or the Finance Documents; or
|
|
(vi)
|
this Clause,
|
|
(b)
|
An amendment or waiver which relates to the rights or obligations of an Administrative Party may only be made with the consent of that Administrative Party.
|
12.3
|
Waivers and remedies cumulative
|
|
(a)
|
may be exercised as often as necessary;
|
|
(b)
|
are cumulative and not exclusive of its rights under the general law; and
|
|
(c)
|
may be waived only in writing and specifically.
|
13.1
|
Assignments and transfers by the Guarantor
|
13.2
|
Assignments and transfers by Lenders
|
|
(a)
|
The Guarantor consents to any assignment, transfer, novation or change in Facility Office made by a Lender under the Credit Agreement.
|
|
(b)
|
Any reference in this Guarantee to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under the Credit Agreement and its Commitment has been cancelled or reduced to nil.
|
|
(a)
|
Each Finance Party must keep confidential any information supplied to it by or on behalf of the Guarantor in connection with this Guarantee. However, a Finance Party is entitled to disclose information:
|
|
(i)
|
which is publicly available, other than as a result of a breach by that Finance Party of this Clause;
|
|
(ii)
|
in connection with any legal or arbitration proceedings;
|
|
(iii)
|
if required to do so under any law or regulation;
|
|
(iv)
|
to a governmental, banking, taxation or other regulatory authority;
|
|
(v)
|
to its professional advisers;
|
|
(vi)
|
to the extent allowed under paragraph (b) below; or
|
|
(vii)
|
with the agreement of the Guarantor.
|
|
(b)
|
A Finance Party may disclose to an Affiliate or any person (a third party) with (or through) whom that Finance Party enters into (or may enter into) any kind of transfer, participation or hedge agreement in relation to this Guarantee or any other transaction under which payments are to be made by reference to this Guarantee or the Guarantor:
|
|
(i)
|
a copy of this Guarantee; and
|
|
(ii)
|
any information which that Finance Party has acquired under or in connection with this Guarantee.
|
|
(c)
|
This Clause supersedes any previous confidentiality undertaking given by a Finance Party in connection with this Guarantee prior to it becoming a Party
|
|
(a)
|
the recovering Finance Party must, within three Business Days, supply details of the recovery to the Security Trustee;
|
|
(b)
|
the Security Trustee must calculate whether the recovery is in excess of the amount which the recovering Finance Party would have received if the recovery had been received and distributed by the Security Trustee in accordance with the DPP without taking account of any Tax which would be imposed on the Security Trustee in relation to the recovery or distribution; and
|
|
(c)
|
the recovering Finance Party must pay to the Security Trustee an amount equal to the excess (the redistribution).
|
16.2
|
Effect of redistribution
|
|
(a)
|
The Security Trustee must treat a redistribution as if it were a payment by the Guarantor under this Guarantee and distribute it among the Finance Parties, other than the recovering Finance Party, accordingly.
|
|
(b)
|
When the Security Trustee makes a distribution under paragraph (a) above, the recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in that redistribution.
|
|
(c)
|
If and to the extent that the recovering Finance Party is not able to rely on any rights of subrogation under paragraph (b) above, the Guarantor will owe the recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged.
|
|
(d)
|
If:
|
|
(i)
|
a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to the Guarantor; and
|
|
(ii)
|
the recovering Finance Party has paid a redistribution in relation to that recovery,
|
16.3
|
Exceptions
|
|
(a)
|
it would not, after the payment, have a valid claim against the Guarantor in the amount of the redistribution; or
|
|
(b)
|
it would be sharing with another Finance Party any amount which the recovering Finance Party has received or recovered as a result of legal or arbitration proceedings, where:
|
|
(i)
|
the recovering Finance Party notified the Security Trustee of those proceedings; and
|
|
(ii)
|
the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.
|
|
(a)
|
the legality, validity or enforceability in that jurisdiction of any other term of this Guarantee; or
|
|
(b)
|
the legality, validity or enforceability in other jurisdictions of that or any other tern of this Guarantee.
|
19.1
|
In writing
|
|
(a)
|
Any communication in connection with this Guarantee must be in writing and, unless otherwise stated, may be given:
|
|
(i)
|
in person, by post or fax; or
|
|
(ii)
|
to the extent agreed by the Parties making and receiving communication, by e-mail or other electronic communication.
|
|
(b)
|
For the purpose of this Guarantee, an electronic communication will be treated as being in writing.
|
|
(c)
|
Unless it is agreed to the contrary, any consent or agreement required under this Guarantee must be given in writing.
|
19.2
|
Contact details
|
|
(a)
|
Except as provided below, the contact details of each Party for all communications in connection with this Guarantee are those notified by that Party for this purpose to the Security Trustee on or before the date it becomes a Party.
|
|
(b)
|
The contact details of the Guarantor for this purpose are:
|
Address:
|
c/o Dryships Inc.
|
80 Kifissias Avenue
|
|
GR-151 25 Amaroussion
|
|
Greece
|
|
Fax number:
|
+30 210 8090575
|
Attention:
|
Mr. Ziad Nakhleh
|
|
(c)
|
The contact details of the Security Trustee for this purpose are:
|
Address:
|
c/o Deutsche Bank Luxembourg S.A.
|
2, Boulevard Konrad Adenauer
|
|
L-1115 Luxembourg
|
|
Luxembourg
|
|
Fax number:
|
+352 42122 95771
|
Attention:
|
Banu Ozkutan / Franz-Josef Ewerhardy, International Loans and Agency Services
|
|
(d)
|
Any Party may change its contact details by giving five Business Days’ notice to the Security Trustee or (in the case of the Security Trustee) to the other Parties.
|
|
(e)
|
Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.
|
19.3
|
Effectiveness
|
|
(a)
|
Except as provided below, any communication in connection with this Guarantee will be deemed to be given as follows:
|
|
(i)
|
if delivered in person, at the time of delivery;
|
|
(ii)
|
if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope;
|
|
(iii)
|
if by fax, when received in legible form; and
|
|
(iv)
|
if by e-mail or any other electronic communication, when received in legible form.
|
|
(b)
|
A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.
|
|
(c)
|
All communications under this Guarantee to or from the Guarantor must be sent through the Security Trustee.
|
|
(a)
|
Any notice given in connection with this Guarantee must be in English.
|
|
(b)
|
Any other document provided in connection with a Finance Document must be:
|
|
(i)
|
in English; or
|
|
(ii)
|
(unless the Security Trustee otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.
|
23.1
|
Jurisdiction
|
|
(a)
|
The English courts have exclusive jurisdiction to settle any dispute in connection this Guarantee or any non-contractual obligations in connection with it.
|
|
(b)
|
The English courts are the most appropriate and convenient courts to settle any such dispute in connection with this Guarantee and any Finance Document. The Guarantor agrees not to argue to the contrary and waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Guarantee and any Finance Document.
|
|
(c)
|
This Clause is for the benefit of the Finance Parties only. To the extent allowed by law, a Finance Party may take:
|
|
(i)
|
proceedings in any other court; and
|
|
(ii)
|
concurrent proceedings in any number of jurisdictions.
|
|
(d)
|
References in this Clause to a dispute in connection with a Finance Document includes any dispute as to the existence, validity or termination of that Finance Document.
|
23.2
|
Service of process
|
|
(a)
|
The Guarantor irrevocably appoints Ince Process Agents Ltd of International House, 5th Floor, 1 St. Katharine’s Way, London E1W 1AY (attn: Mr. Michael Volikas) as its agent under the Finance Documents for service of process in any proceedings before the English courts in connection with any Finance Document.
|
|
(b)
|
If any person appointed as process agent under this Clause is unable for any reason to so act, the Guarantor must immediately (and in any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Security Trustee. Failing this, the Security Trustee may appoint process another agent for this purpose.
|
|
(c)
|
The Guarantor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
|
|
(d)
|
This Clause does not affect any other method of service allowed by law.
|
23.3
|
Waiver of immunity
|
|
(a)
|
agrees not to claim any immunity from proceedings brought by a Finance Party against it in relation to a Finance Document 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 those proceedings; and
|
|
(c)
|
waives all rights of immunity in respect of it or its assets.
|
SIGNED as a deed by
|
)
|
||
DRYSHIPS INC.
|
)
|
/s/ Dimitrios Glynos
|
|
acting by its attorney DIMITRIOS GLYNOS
|
)
|
DryShips Inc. by its attorney
|
|
in the presence of:
|
)
|
||
Witness's Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-law
|
|||
Address:
|
52, Ag. Konstantinous Street, 15124 Marousi
|
||
Athens, Greece
|
|||
Tel.:
|
+30 210 6140810
|
||
Fax:
|
+30 210 6140267
|
CONTENTS | ||
Clause
|
Page
|
|
1.
|
Definitions and Interpretation
|
2
|
2.
|
Sponsor Release
|
2
|
3.
|
Amendments, amendments and restatements
|
2
|
4.
|
Ocean Rig and Bareboat Charterer Confirmations
|
3
|
5.
|
Joint and Several Liability
|
7
|
6.
|
Notices
|
7
|
7.
|
Finance Documents
|
7
|
8.
|
Counterparts
|
8
|
9.
|
Governing Law
|
8
|
10.
|
Enforcement
|
8
|
11.
|
Service of Process
|
8
|
Schedule
|
||
1 .
|
Original Lenders
|
9
|
2.
|
Form of Effective Date Notice
|
10
|
3.
|
Conditions Precedent
|
11
|
4.
|
Form of Amended and Restated Credit Agreement
|
12
|
5.
|
Form of Amended and Restated DPP
|
13
|
6.
|
Form of Sponsor Guarantee
|
14
|
Signatories
|
15
|
(1)
|
DRILLSHIP SKOPELOS OWNERS INC. a corporation incorporated in the Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MI-I 96960 as borrower (the Owner);
|
(2)
|
OCEAN RIG DRILLING OPERATIONS B.V. a private company with limited liability (beslotenvennootschap) under the laws of the Netherlands, having its registered office at Claude Debussylaan 24, 1082 MD Amsterdam, the Netherlands, registered in the Netherlands in the trade register of the Amsterdam Chamber of Commerce under number 34392532 as bareboat charterer (the Bareboat Charterer);
|
(3)
|
DRYSHIPS INC. a corporation incorporated in the Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the Sponsor);
|
(4)
|
OCEAN RIG UDW INC., a corporation incorporated in the Marshall Islands with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as guarantor (Ocean Rig);
|
(5)
|
DRILLSHIPS INVESTMENT INC., a corporation incorporated in the Marshall Islands and the sole shareholder of the Parent whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the Parent Shareholder);
|
(6)
|
SKOPELOS SHAREHOLDERS INC., a corporation incorporated in the Marshall Islands and the sole shareholder of the Owner whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the Parent);
|
(7)
|
DEUTSCHE BANK LUXEMBOURG S.A. as facility agent for itself and on behalf of the financial institutions listed in Schedule 1 (Original Lenders) as original lenders (the Original Lenders) (in this capacity the Facility Agent);
|
(8)
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT as security trustee (in this capacity the Security Trustee);
|
(9)
|
DEUTSCHE BANK AG, LONDON BRANCH as bookrunner and mandated lead arranger and bookrunner (in this capacity the Bookrunner and Mandated Lead Arranger);
|
(10)
|
DEUTSCHE BANK AG, LONDON BRANCH as account bank (the Account Bank); and
|
(11)
|
DEUTSCHE BANK AG, LONDON BRANCH as swap bank (in this capacity the Swap Bank).
|
(A)
|
Pursuant to a credit agreement dated 18 July 2008 as amended from time-to-time and most recently amended and restated on 20 February 2012 (the Credit Agreement) and now between, amongst others, the Owner as borrower, the Facility Agent and the Security Trustee, the Owner has agreed to borrow and the Original Lenders have agreed to lend upon the terms and conditions mentioned in the Credit Agreement.
|
(B)
|
The Finance Parties have agreed, amongst other things, to release and discharge the Sponsor Construction and Post-Delivery Guarantee.
|
(C)
|
Accordingly, the Parties have agreed to amend, or amend and restate, certain of the Finance Documents as set out in this Deed.
|
(a)
|
In this Deed (including the recitals hereto) capitalised terms defined in the Amended and Restated Credit Agreement have, unless specified, the same meaning, and:
|
(b)
|
Clause 1.2 of the Credit Agreement shall be deemed to be part of this Deed and is hereby incorporated as if set out in full but with references therein to the Credit Agreement being replaced by references to this Deed.
|
|
(b)
|
the Finance Parties shall have no further rights under the Sponsor Construction and Post-Delivery Guarantee and the Sponsor shall be released from any and all of its obligations under the Sponsor Construction and Post-Delivery Guarantee; and
|
|
(c)
|
the Sponsor shall be released from any and all of its obligations under any of the Finance Documents to which it is a party (save for the Sponsor Guarantee).
|
(a)
|
The Credit Agreement Parties each agree and acknowledge that on and from the Effective Date the Credit Agreement will be amended and restated so that it takes effect in the form of the document as set out in Schedule 4 (Form of Amended and Restated Credit Agreement).
|
(b)
|
The DPP Parties each agree and acknowledge that on and from the Effective Date the DPP will be amended and restated so that it takes effect in the form of the document as set out in Schedule 5 (Form of Amended and Restated DPP).
|
(c)
|
Each of the Parent and the Parent Shareholder and the Security Trustee (as parties to the Share Charge) agree and acknowledge in respect of clause 20.2 of the Share Charge, that the reference to "the Sponsor" shall be deleted and replaced with "Ocean Rig".
|
(d)
|
Each of the Owner and the Security Trustee (as parties to the Floating Charge) agree and acknowledge that the reference to "or the Sponsor" in clause 7.2(a) of the Floating Charge is deleted.
|
(e)
|
Each of the Owner and the Security Trustee (as parties to the Management Agreement Assignment) agree and acknowledge that the reference to "the Sponsor" in clause 3.1 of the Management Agreement Assignment shall be deleted and replaced with "the Manager".
|
(f)
|
Each of the Owner and the Security Trustee (as parties to the General Assignment) agree and acknowledge that the reference to "or the Sponsor" in paragraph (b) of the definition of "Assigned Rights" in clause 1.1 of the General Assignment shall be deleted.
|
(g)
|
The Facility Agent shall serve the Effective Date Notice on the other parties to this Deed when it has received all of the conditions precedent set out in Schedule 3 (Conditions Precedent) in form and substance satisfactory to the Facility Agent (acting on the instructions of all of the Lenders).
|
|
(a)
|
With effect from the Effective Date, the following amendments will be made to the Ocean Rig Guarantee:
|
|
(a)
|
cash in hand legally and beneficially owned by a member of the Group; and
|
|
(b)
|
cash deposits legally and beneficially owned by a member of the Group, and which are deposited with (i) the Lenders, (ii) any other deposit taking institution having a rating of at least A- from Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (iii) EFG Eurobank Ergasias S.A. or (iv) any other bank or financial institution approved by the Facility Agent (on behalf of the Majority Lenders) which in each case:
|
|
(A)
|
is free from any Security Interest, other than pursuant to the Security Documents;
|
|
(B)
|
is otherwise at the free and unrestricted disposal of the relevant member of the Group , by which it is owned; and
|
|
(C)
|
in the case of cash in hand or cash deposits held by a member of the Group, other than the Owner, is (in the opinion of the Facility Agent, upon such documents and evidence as the Facility Agent may require the Owner to provide in order to form the basis of such opinion) capable or, upon the occurrence of an Event of Default, would become capable of being paid without restriction to the Owner within five (5) Business Days of its request or demand therefore either by way of a dividend or by way of a repayment of principal (or the payment of interest thereon) in respect of an intercompany loan from the Borrower to that Subsidiary."
|
|
(a)
|
any investment in marketable debt obligations issued or guaranteed by (i) agovernment or (ii) an instrumentality or agency of a government and in respect of (i) and (ii) having a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
|
|
(b)
|
commercial paper (debt obligations) not convertible or exchangeable to any other security:
|
|
(i)
|
for which a recognised trading market exists;
|
|
(ii)
|
issued by an issuer incorporated in the United States of America, the United Kingdom or Norway;
|
|
(iii)
|
which matures within one year after the relevant date of calculation; and
|
|
(iv)
|
which has a credit rating of at least A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe;
|
|
(c)
|
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (b) above and (iii) can be turned into cash on not more than 5 days' notice; or
|
|
(d)
|
any other debt security approved by the Facility Agent (on behalf of the Majority Lenders),
|
|
(ii)
|
In clause 1.1, the definition of "Secured Liabilities" shall be deleted and replaced with the following:
|
|
(iii)
|
Clause 2.5(c) shall be deleted and replaced with the following:
|
|
(iv)
|
Clause 2.6(a) shall be deleted and replaced with the following:
|
|
(v)
|
Clause 2.7(a)(i) shall be deleted and replaced with the following:
|
|
(vi)
|
Clause 2.8(ii) shall be deleted and replaced with the following:
|
|
(vii)
|
Clause 7.10(b) shall be deleted and replaced with the following:
|
|
(i)
|
the Guarantor procuring that notwithstanding Clause 7.14(e) below, on, and at all times during the period of twelve (12) months from, the date of payment of such dividend, making of any such other form of distribution, or effecting of any such form of redemption or return of share capital, Ocean Rig and all other members of the Group shall have and shall maintain Cash, Cash Equivalents and Restricted Cash in an aggregate amount of not less than US$200,000,000, evidence of compliance to be provided prior to any such dividend, or other form of distribution by way of a cash-flow forecast including details of:
|
|
(A)
|
all committed payments in relation to capital expenditure;
|
|
(B)
|
scheduled repayments of debt; and
|
|
(C)
|
scheduled debt drawdowns under committed facilities; and
|
|
(ii)
|
no Event of Default having occurred and which is continuing at the relevant time or resulting from the payment of a dividend or the making of any other form of distribution.";
|
|
(viii)
|
Clause 7.14(e) shall be deleted and replaced with the following:
|
|
"(e)
|
subject to Clause 7.10(b), at all times there is available to the Guarantor and all the other members of the Group an aggregate amount of not less than US$100,000,000 in immediately freely available and unencumbered bank or cash balances.".
|
|
(b)
|
The following amendments will be made to the Bareboat Charterer Guarantee:
|
|
(i)
|
Clause 2.4(c) shall be deleted and replaced with the following:
|
|
(ii)
|
Clause 2.5(a) shall be deleted and replaced with the following:
|
|
(iii)
|
Clause 2.6(a)(i) shall be deleted and replaced with the following:
|
|
(iv)
|
Clause 2.7(ii) shall be deleted and replaced with the following:
|
|
(v)
|
Clause 7.13(a) shall be deleted and replaced with the following:
|
5.
|
JOINT AND SEVERAL LIABILITY
|
6.
|
NOTICES
|
Address:
|
c/o Ocean Rig UDW Inc.
10 Skopa st. Tribune House
P.C. 1075, Nicosia
Cyprus
|
Fax number:
|
+357 22 76 75 15
|
Attention:
|
Mr Savvas D Georgiades
|
7.
|
FINANCE DOCUMENTS
|
(a)
|
This Deed is a Finance Document.
|
(b)
|
The Parties each agree that as of the Effective Date each reference in the Finance Documents (other than in this Deed) to the Credit Agreement, the DPP, the Ocean Rig Guarantee, the Bareboat Charterer Guarantee, Share Charge, the Floating Charge, the Management Agreement Assignment and the General Assignment (including the Schedules (howsoever described)) shall be construed as a reference to that document as amended, or as the case may be amended and restated in accordance with the terms of this Deed.
|
(c)
|
Save as expressly provided in this Deed, each of the Parties confirms that each of the Finance Documents to which it is a party remains in full force and effect.
|
8.
|
COUNTERPARTS
|
9.
|
GOVERNING LAW
|
10.
|
ENFORCEMENT
|
11.
|
SERVICE OF PROCESS
|
(a)
|
Each of the Owner, the Bareboat Charterer, the Sponsor and Ocean Rig, the Parent and the Parent Shareholder irrevocably appoints Ince Process Agents Ltd of International House, 5th Floor, 1st Katherine's Way, London, ElW 1 AY (attn: Mr. Michael Volikas) as its agent under this Deed for service of process in any proceedings before the English courts in connection with this Deed.
|
(b)
|
If any person appointed as process agent under this Clause is unable for any reason to act as agent for service of process, the party appointing such process agent must forthwith (and in any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Security Trustee (acting reasonably). Failing this, the Security Trustee may appoint another process agent for this purpose.
|
(c)
|
The Owner, the Bareboat Charterer, the Sponsor and Ocean Rig each agree that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
|
(d)
|
This Clause 11 does not affect any other method of service allowed by law.
|
1.
|
An original of each of the following documents (the Documents) duly executed by the parties to them, together with all notices thereto:
|
|
(a)
|
this Deed; and
|
|
(b)
|
the Sponsor Guarantee.
|
2.
|
From and in relation to the Owner, the Bareboat Charterer, Ocean Rig, the Parent and the Parent Shareholder refresh certificates, update report or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in part 1 of schedule 2 to the Credit Agreement at paragraphs 2, 3, 18, 19 and 21.
|
3.
|
Up-to-date certificates of good standing of Owner, Ocean Rig, the Parent, the Parent Shareholder and the Sponsor dated no more than two Business Days prior to the Effective Date.
|
4.
|
A certified copy of a resolution of the board of directors of each of the Owner, the Parent, the Parent Shareholder, the Sponsor, Ocean Rig and the Bareboat Charterer:
|
|
(a)
|
approving the terms of, and the transactions contemplated by, the Documents to which it is party and resolving that it executes each such Document then to be executed;
|
|
(b)
|
authorising a specified person or persons to execute on its behalf the Documents to which it is party, then to be executed; and
|
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with the Documents to which it is party then to be executed,
|
5.
|
A power of attorney of each of the Owner, the Parent, the Parent Shareholder, the Sponsor, Ocean Rig and the Bareboat Charterer issued, and not amended or rescinded, authorising the execution by the attorneys named therein of the Documents to which it is party.
|
6.
|
A specimen of the signature of each person authorised by the resolutions referred to in paragraphs 4 and 5 above.
|
7.
|
Evidence of appointment of process agent by each of the Bareboat Charterer, Ocean Rig, the Owner, the Parent, the Parent Shareholder and the Sponsor in relation to each of the Documents to which it is a party.
|
8.
|
Copies of such other documents and/or legal opinions which, based on legal advice received from the relevant advisers referred to in this Deed and which are reasonably required to evidence the legality, validity and enforceability of the obligations of the parties to, or in connection with, any of the Documents.
|
SIGNED as a deed by
|
)
|
|
DRILLSHIP SKOPELOS OWNERS INC.
|
)
|
/s/ Dimitrios Glynos
|
acting by its attorney DIMITRIOS GLYNOS
|
)
|
Drillship Skopelos Owners Inc. by its attorney
|
in the presence of:
|
)
|
|
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street 15124-Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
|
DRYSHIPS INC.
|
)
|
/s/ Dimitrios Glynos
|
acting by its attorney DIMITRIOS GLYNOS
|
)
|
DryShips Inc. by its attorney
|
in the presence of:
|
)
|
|
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street-15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
|
OCEAN RIG UDW INC.
|
)
|
/s/ Dimitrios Glynos
|
acting by its attorney DIMITRIOS GLYNOS
|
)
|
Ocean Rig UDW Inc. by its attorney
|
in the presence of:
|
)
|
|
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street 15124 Marousi
|
||
Athens Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
|
OCEAN RIG DRILLING OPERATINS B.V.
|
)
|
/s/ Dimitrios Glynos
|
by its attorney
|
)
|
Ocean Rig Drilling Operatins B.V. by its attorney
|
)
|
||
in the presence of: | ) |
Witness’s Signature
|
/s/ [Illegible]
|
||
Name:
|
[Illegible]
|
||
Address:
|
|||
SIGNED as a deed by
|
)
|
|
DRILLSHIPS INVESTMENT INC.
|
)
|
/s/ Dimitrios Glynos
|
acting by its attorney DIMITRIOS GLYNOS
|
)
|
Drillships Investment Inc. by its attorney
|
in the presence of:
|
)
|
|
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street-15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
|
SKOPELOS SHAREHOLDERS INC.
|
)
|
/s/ Dimitrios Glynos
|
acting by its attorney DIMITRIOS GLYNOS
|
)
|
Skopelos Shareholders Inc. by its attorney
|
in the presence of:
|
)
|
|
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street-15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
The Facility Agent for itself and on behalf of each Lender
|
|
By: /s/ M. Heinemann
|
/s/ Ewerhardy
|
M. Heinemann
|
Ewerhardy
|
as authorized signatory for
|
|
DEUTSCHE BANK LUXEMBOURG S.A.
|
|
The Security Trustee
|
|
By: /s/ Carola Roth
|
/s/ Dr. Bastian [Illegible]
|
Carola Roth
|
Dr. Bastian [Illegible]
|
as authorized signatory for
|
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDESCHÄFT
|
The Bookrunner and Mandated Lead Arranger
|
|
By: /s/ Ross D. Cloney
|
/s/ Daniel Pietrzak
|
Ross D. Cloney | Daniel Pietrzak |
Authorised Signatory
|
Managing Director
|
as authorized signatory for
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
|
The Account Bank
|
|
By: /s/ Ross D. Cloney
|
/s/ Daniel Pietrzak
|
Ross D. Cloney | Daniel Pietrzak |
Authorised Signatory
|
Managing Director
|
as authorized signatory for
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
The Swap Bank
|
By: /s/ Ross D. Cloney
|
/s/ Daniel Pietrzak
|
Ross D. Cloney | Daniel Pietrzak |
Authorised Signatory
|
Managing Director
|
as authorized signatory for
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
|
CONTENTS | ||
Clause
|
Page
|
|
1.
|
Definitions and Interpretation
|
2
|
2.
|
Sponsor Release
|
2
|
3.
|
Amendments, amendments and restatements
|
2
|
4.
|
Ocean Rig and Bareboat Charterer Confirmations
|
3
|
5.
|
Joint and Several Liability
|
7
|
6.
|
Notices
|
7
|
7.
|
Finance Documents
|
7
|
8.
|
Counterparts
|
7
|
9.
|
Governing Law
|
8
|
10.
|
Enforcement
|
8
|
11.
|
Service of Process
|
8
|
Schedule
|
||
1.
|
Original Lenders
|
9
|
2.
|
Form of Effective Date Notice
|
10
|
3.
|
Conditions Precedent
|
11
|
4.
|
Form of Amended and Restated Credit Agreement
|
13
|
5.
|
Form of Amended and Restated DPP
|
14
|
6.
|
Form of Sponsor Guarantee
|
15
|
Signatories
|
16
|
(1)
|
DRILLSHIP KITHIRA OWNERS INC. a corporation incorporated in the Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as borrower (the Owner);
|
(2)
|
OCEAN RIG POSEIDON OPERATIONS INC. (formerly Tanzania Operations Inc.), a company incorporated under the laws of the Marshall Islands with registered number 47778 with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as bareboat charterer (the Bareboat Charterer);
|
(3)
|
DRYSHIPS INC. a corporation incorporated in the Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the Sponsor);
|
(4)
|
OCEAN RIG UDW INC., a corporation incorporated in the Marshall Islands with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 as guarantor (Ocean Rig);
|
(5)
|
DRILLSHIPS INVESTMENT INC., a corporation incorporated in the Marshall Islands and the sole shareholder of the Parent whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the Parent Shareholder);
|
(6)
|
KITHIRA SHAREHOLDERS INC., a corporation incorporated in the Marshall Islands and the sole shareholder of the Owner whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the Parent);
|
(7)
|
DEUTSCHE BANK LUXEMBOURG S.A. as facility agent for itself and on behalf of the financial institutions listed in Schedule 1 (Original Lenders) as original lenders (the Original Lenders) (in this capacity the Facility Agent);
|
(8)
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHAFT as security trustee (in this capacity the Security Trustee);
|
(9)
|
DEUTSCHE BANK AG, LONDON BRANCH as bookrunner and mandated lead arranger and bookrunner (in this capacity the Bookrunner and Mandated Lead Arranger);
|
(10)
|
DEUTSCHE BANK AG, LONDON BRANCH as account bank (the Account Bank); and
|
(11)
|
DEUTSCHE BANK AG, LONDON BRANCH as swap bank (in this capacity the Swap Bank).
|
(A)
|
Pursuant to a credit agreement dated 18 July 2008 as amended from time-to-time and most recently amended and restated on 25 August 2011 (the Credit Agreement) and now between, amongst others, the Owner as borrower, the Facility Agent and the Security Trustee, the Owner has agreed to borrow and the Original Lenders have agreed to lend upon the terms and conditions mentioned in the Credit Agreement.
|
(B)
|
The Finance Parties have agreed, amongst other things, to release and discharge the Sponsor Construction and Post-Delivery Guarantee.
|
(C)
|
Accordingly, the Parties have agreed to amend, or amend and restate, certain of the Finance Documents as set out in this Deed.
|
1. | DEFINITIONS AND INTERPRETATION |
(a)
|
In this Deed (including the recitals hereto) capitalised terms defined in the Amended and Restated Credit Agreement have, unless specified, the same meaning, and:
|
|
Amended and Restated Credit Agreement means the Credit Agreement in the form attached at Schedule 4 (Form of Amended and Restated Credit Agreement).
|
|
Credit Agreement Parties means the Owner, the Bookrunner and Mandated Lead Arranger, the Lenders, the Swap Bank, the Facility Agent and the Security Trustee.
|
|
DPP Parties means the Owner, the Bareboat Charterer, Ocean Rig, the Lenders, the Swap Bank, the Facility Agent, the Security Trustee and the Account Bank.
|
|
Effective Date means the date of execution by the Facility Agent of the Effective Date Notice.
|
|
Effective Date Notice means a notice to be signed by the Facility Agent substantially in the form set out in Schedule 2 (Form of Effective Date Notice) to this Deed.
|
|
Parties means the parties to this Deed.
|
|
Sponsor Guarantee means the guarantee and indemnity from the Sponsor in favour of the Security Trustee, substantially in the form attached at Schedule 6 (Form of Sponsor Guarantee) to this Deed.
|
(b)
|
Clause 1.2 of the Credit Agreement shall be deemed to be part of this Deed and is hereby incorporated as if set out in full but with references therein to the Credit Agreement being replaced by references to this Deed.
|
2. | SPONSOR RELEASE |
(a)
|
the Sponsor Construction and Post-Delivery Guarantee is released and discharged;
|
(b)
|
the Finance Parties shall have no further rights under the Sponsor Construction and Post-Delivery Guarantee and the Sponsor shall be released from any and all of its obligations under the Sponsor Construction and Post-Delivery Guarantee; and
|
(c)
|
the Sponsor shall be released from any and all of its obligations under any of the Finance Documents to which it is a party (save for the Sponsor Guarantee).
|
3. | AMENDMENTS, AMENDMENTS AND RESTATEMENTS |
(a)
|
The Credit Agreement Parties each agree and acknowledge that on and from the Effective Date the Credit Agreement will be amended and restated so that it takes effect in the form of the document as set out in Schedule 4 (Form of Amended and Restated Credit Agreement).
|
(b)
|
The DPP Parties each agree and acknowledge that on and from the Effective Date the DPP will be amended and restated so that it takes effect in the form of the document as set out in Schedule 5 (Form of Amended and Restated DPP).
|
(c)
|
Each of the Owner and the Security Trustee (as parties to the Bareboat Charterer Pledge of Shares) agree and acknowledge in respect of clause 20.2 of the Bareboat Charterer Pledge of Shares, and each of Ocean Rig, the Parent and the Parent Shareholder (as parties to the Share Charge) agree and acknowledge in respect of clause 20.2 of the Share Charge, that the reference to "the Sponsor" in each such clause 20.2. shall be deleted and replaced with "Ocean Rig".
|
(d)
|
Each of the Owner and the Security Trustee (as parties to the Floating Charge) agree and acknowledge that the reference to "or the Sponsor" in clause 7.2(a) of the Floating Charge is deleted.
|
(e)
|
Each of the Owner and the Security Trustee (as parties to the Management Agreement Assignment) agree and acknowledge that the reference to "the Sponsor" in clause 3.1 of the Management Agreement Assignment shall be deleted and replaced with "the Manager".
|
(f)
|
Each of the Owner and the Security Trustee (as parties to the General Assignment) agree and acknowledge that the reference to "or the Sponsor" in paragraph (b) of the definition of "Assigned Rights" in clause 1.1 of the General Assignment shall be deleted.
|
(g)
|
The Facility Agent shall serve the Effective Date Notice on the other parties to this Deed when it has received all of the conditions precedent set out in Schedule 3 (Conditions Precedent) in form and substance satisfactory to the Facility Agent (acting on the instructions of all of the Lenders).
|
4. | OCEAN RIG AND BAREBOAT CHARTERER CONFIRMATIONS |
Each of Ocean Rig and the Bareboat Charterer confirms that notwithstanding the amendments contemplated by this Deed, its obligations arising under the Ocean Rig Guarantee in the case of Ocean Rig and under the Bareboat Charterer Guarantee in the case of the Bareboat Charterer shall remain unaffected and in full force and effect in respect of the obligations of the Owner under the Finance Documents with the exception of the amendments below:
|
(a)
|
With effect from the Effective Date, the following amendments will be made to the Ocean Rig Guarantee:
|
(i)
|
In clause 1.1, the following new definitions shall be added:
|
(a)
|
cash in hand legally and beneficially owned by a member of the Group; and
|
(b)
|
cash deposits legally and beneficially owned by a member of the Group, and which are deposited with (i) the Lenders, (ii) any other deposit taking institution having a rating of at least A- from Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (iii) EFG Eurobank Ergasias S.A. or (iv) any other bank or financial institution approved by the Facility Agent (on behalf of the Majority Lenders) which in each case:
|
|
(A)
|
is free from any Security Interest, other than pursuant to the Security Documents;
|
|
(B)
|
is otherwise at the free and unrestricted disposal of the relevant member of the Group , by which it is owned; and
|
|
(C)
|
in the case of cash in hand or cash deposits held by a member of the Group, other than the Owner, is (in the opinion of the Facility Agent, upon such
|
|
|
documents and evidence as the Facility Agent may require the Owner to provide in order to form the basis of such opinion) capable or, upon the occurrence of an Event of Default, would become capable of being paid without restriction to the Owner within five (5) Business Days of its request or demand therefore either by way of a dividend or by way of a repayment of principal (or the payment of interest thereon) in respect of an intercompany loan from the Borrower to that Subsidiary."
|
(a)
|
any investment in marketable debt obligations issued or guaranteed by (i) a government or (ii) an instrumentality or agency of a government and in respect of (i) and (ii) having a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
|
(b)
|
commercial paper (debt obligations) not convertible or exchangeable to any other security:
|
|
(i)
|
for which a recognised trading market exists;
|
|
(ii)
|
issued by an issuer incorporated in the United States of America, the United Kingdom or Norway;
|
|
(iii)
|
which matures within one year after the relevant date of calculation; and
|
|
(iv)
|
which has a credit rating of at least A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe;
|
(c)
|
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (b) above and (iii) can be turned into cash on not more than 5 days' notice; or
|
(d)
|
any other debt security approved by the Facility Agent (on behalf of the Majority Lenders), |
|
in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security Interest."
|
"Restricted Cash means cash deposits legally and beneficially owned by a member of the Group, and which are deposited (i) in the Debt Service Reserve Account; (ii) in the Debt Service Reserve Account (as defined in the Sister Loan Agreement); and (iii) in the accounts of Drillships Holdings Inc. held with Nordea Bank Finland plc. and ABN AMRO Bank N.V. in which Drillships Holdings Inc. shall maintain its minimum liquidity in line with the provisions of the loan agreement dated 15 April 2011 between, amongst others, Drillships Holdings Inc. as borrower and Nordea Bank Finland plc as agent, in respect of the financing of the Group vessels "OCR Corcovado" and "OCR Olympia"; and (iv) in the accounts of Drill Rigs Holdings Inc. (or its subsidiaries) held with DNB Bank ASA in line with the minimum liquidity clause of the loan agreement dated 19 November 2009 between, amongst others, various companies as borrower and DNB as agent, in respect of the financing of the Group vessels "Eirik Raude" and "Leiv Eiriksson"."
|
(ii)
|
In clause 1.1, the definition of "Secured Liabilities" shall be deleted and replaced with the following:
|
|
"Secured Liabilities means all present and future obligations and liabilities (actual or contingent) of the Owner, the Parent, the Parent Shareholder, the Sister Owner, the Sister Parent or the Guarantor to the Secured Parties or any of them under or in connection with any Finance Document or any Sister Finance Document.";
|
(iii)
|
Clause 2.5(c) shall be deleted and replaced with the following:
|
"the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person (including, without limitation, the right to make a claim against the Bareboat Charterer under the Bareboat Charterer Guarantee and the neglect to take up or enforce the Bareboat Charterer Guarantee);";
|
(iv)
|
Clause 2.6(a) shall be deleted and replaced with the following:
|
|
"The Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person before claiming from the Guarantor under this Clause (including, without limitation, proceeding against or enforcing any right to claim payment from the Bareboat Charterer under the Bareboat Charterer Guarantee).";
|
(v)
|
Clause 2.7(a)(i) shall be deleted and replaced with the following:
|
|
"refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) against those amounts (including, without limitation, the right to make a claim against the Bareboat Charterer under the Bareboat Charterer Guarantee);" ;
|
(vi)
|
Clause 2.8(ii) shall be deleted and replaced with the following:
|
|
"be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of the Guarantor's liability under this Clause (including, in particular but without limitation, any right of contribution or indemnity from the Bareboat Charterer as guarantor under the Bareboat Charterer Guarantee);";
|
(vii)
|
Clause 7.10(b) shall be deleted and replaced with the following:
|
|
"(b)
|
pay any dividend or make any other form of distribution or effect any form of redemption or return of share capital, provided that the Guarantor may in any financial year pay a dividend or make any such other form of distribution which does not exceed in aggregate 50 per cent. of the Net Income for such financial year subject to:
|
(i)
|
the Guarantor procuring that notwithstanding Clause 7.14(e) below, on, and at all times during the period of twelve (12) months from, the date of payment of such dividend, making of any such other form of distribution, or effecting of any such form of redemption or return of share capital, Ocean Rig and all other members of the Group shall have and shall maintain Cash, Cash Equivalents and Restricted Cash in an aggregate amount of not less than US$200,000,000, evidence of compliance to be provided prior to any such dividend, or other form of distribution by way of a cash-flow forecast including details of:
|
|
(A)
|
all committed payments in relation to capital expenditure;
|
|
(B)
|
scheduled repayments of debt; and
|
|
(C)
|
scheduled debt drawdowns under committed facilities; and
|
(ii)
|
no Event of Default having occurred and which is continuing at the relevant time or resulting from the payment of a dividend or the making of any other form of distribution.";
|
(viii)
|
Clause 7.14(e) shall be deleted and replaced with the following:
|
|
"(e)
|
subject to Clause 7.10(b), at all times there is available to the Guarantor and all the other members of the Group an aggregate amount of not less than US$100,000,000 in immediately freely available and unencumbered bank or cash balances.".
|
(b)
|
The following amendments will be made to the Bareboat Charterer Guarantee:
|
(i)
|
Clause 2.4(c) shall be deleted and replaced with the following:
|
|
"the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person (including, without limitation, the right to make a claim against Ocean Rig under the Ocean Rig Guarantee and the neglect to take up or enforce the Ocean Rig Guarantee);";
|
(ii)
|
Clause 2.5(a) shall be deleted and replaced with the following:
|
|
"The Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person before claiming from the Guarantor under this Clause (including, without limitation, proceeding against or enforcing any right to claim payment from Ocean Rig under the Ocean Rig Guarantee).";
|
(iii)
|
Clause 2.6(a)(i) shall be deleted and replaced with the following:
|
|
"refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) against those amounts (including, without limitation, the right to make a claim against Ocean Rig under the Ocean Rig Guarantee); or";
|
(iv)
|
Clause 2.7(ii) shall be deleted and replaced with the following:
|
|
"be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of the Guarantor's liability under this Clause (including, in particular but without limitation, any right of contribution or indemnity from Ocean Rig as guarantor under the Ocean Rig Guarantee);";
|
(v)
|
Clause 7.13(a) shall be deleted and replaced with the following:
|
|
"maintain and preserve the Vessel in good working order and repair (ordinary wear and tear excepted), seaworthy, in efficient operating condition and, in any event, to a standard at least equivalent to vessels managed and/or operated by the Manager and Ocean Rig's group and the recommendations of the Builder;".
|
5. | JOINT AND SEVERAL LIABILITY |
|
In respect of the guarantee and indemnity of the Owner's obligations under the Finance Documents provided by each of the Bareboat Charterer and Ocean Rig under the Bareboat Charterer Guarantee and the Ocean Rig Guarantee respectively, and where any obligation, representation, warranty or undertaking is expressed to be made, undertaken or given by the Bareboat Charterer in the Bareboat Charterer Guarantee and by Ocean Rig in the Ocean Rig Guarantee, the Bareboat Charterer and Ocean Rig shall be jointly and severally responsible in respect of it. The Security Trustee may take action against or release or compromise in whole or in part the liability of any other party under this Deed or grant any time or other indulgence without affecting the liability of the others.
|
6. | NOTICES |
|
Clause 19 (Notices) of the DPP (as attached at Schedule 5) shall apply to this Deed as if set out in full herein, with the addition of the following contact details for the Parent and the Parent Shareholder:
|
Address:
|
c/o Ocean Rig UDW Inc.
10 Skopa st.
Tribune House
P.C. 1075, Nicosia
Cyprus
|
|
Fax number:
|
+357 22 76 75 15
|
|
Attention:
|
Mr. Savvas D. Georgiades
|
7. | FINANCE DOCUMENTS |
(a)
|
This Deed is a Finance Document.
|
(b)
|
The Parties each agree that as of the Effective Date each reference in the Finance Documents (other than in this Deed) to the Credit Agreement, the DPP, the Ocean Rig Guarantee, the Bareboat Charterer Guarantee, the Share Charge, the Bareboat Charterer Pledge of Shares, the Floating Charge, the Management Agreement Assignment and the General Assignment (including the Schedules (howsoever described)) shall be construed as a reference to that document as amended, or as the case may be amended and restated in accordance with the terms of this Deed.
|
(c)
|
Save as expressly provided in this Deed, each of the Parties confirms that each of the Finance Documents to which it is a party remains in full force and effect.
|
8. | COUNTERPARTS |
|
This Deed may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Deed.
|
9. | GOVERNING LAW |
This Deed and any non-contractual obligations arising out of or in connection with it, is governed by and shall be construed in accordance with English law and the parties irrevocably submit to the jurisdiction of the Courts of England and Wales, including in connection with any dispute relating to any non-contractual obligations arising out of or in connection with this Deed.
|
10. | ENFORCEMENT |
Clause 36 (Enforcement) of the Amended and Restated Credit Agreement shall apply to this Deed as if set out in full herein.
|
11. | SERVICE OF PROCESS |
(a)
|
Each of the Owner, the Bareboat Charterer, the Sponsor and Ocean Rig, the Parent and the Parent Shareholder irrevocably appoints Ince Process Agents Ltd of International House, 5th Floor, 1st Katherine's Way, London, E 1 W 1AY (attn: Mr. Michael Volikas) as its agent under this Deed for service of process in any proceedings before the English courts in connection with this Deed.
|
(b)
|
If any person appointed as process agent under this Clause is unable for any reason to act as agent for service of process, the party appointing such process agent must forthwith (and in any event within five (5) days of the event taking place) appoint another agent on terms acceptable to the Security Trustee (acting reasonably). Failing this, the Security Trustee may appoint another process agent for this purpose.
|
(c)
|
The Owner, the Bareboat Charterer, the Sponsor and Ocean Rig each agree that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
|
(d)
|
This Clause 11 does not affect any other method of service allowed by law.
|
|
IN WITNESS WHEREOF this DEED has been entered into by the parties to it on the day and year first above written.
|
1.
|
An original of each of the following documents (the Documents) duly executed by the parties to them, together with all notices thereto:
|
2.
|
From and in relation to the Owner, the Bareboat Charterer, Ocean Rig, the Parent and the Parent Shareholder refresh certificates, update report or, as the case may be confirmation and satisfactory evidence of continued compliance with the conditions precedent referred to in part 1 of schedule 2 to the Credit Agreement at paragraphs 2, 3, 18, 19 and 21.
|
3.
|
Up-to-date certificates of good standing of Owner, the Bareboat Charterer, Ocean Rig, the Parent, the Parent Shareholder and the Sponsor dated no more than two Business Days prior to the Effective Date.
|
4.
|
A certified copy of a resolution of the board of directors of each of the Owner, the Parent, the Parent Shareholder, the Sponsor, Ocean Rig and the Bareboat Charterer:
|
|
(a)
|
approving the terms of, and the transactions contemplated by, the Documents to which it is party and resolving that it executes each such Document then to be executed;
|
|
(b)
|
authorising a specified person or persons to execute on its behalf the Documents to which it is party, then to be executed; and
|
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with the Documents to which it is party then to be executed,
|
5.
|
A power of attorney of each of the Owner, the Parent, the Parent Shareholder, the Sponsor, Ocean Rig and the Bareboat Charterer issued, and not amended or rescinded, authorising the execution by the attorneys named therein of the Documents to which it is party.
|
6.
|
A specimen of the signature of each person authorised by the resolutions referred to in paragraphs 4 and 5 above.
|
7.
|
Evidence of appointment of process agent by each of the Bareboat Charterer, Ocean Rig, the Owner, the Parent, the Parent Shareholder and the Sponsor in relation to each of the Documents to which it is a party.
|
8.
|
Copies of such other documents and/or legal opinions which, based on legal advice received from the relevant advisers referred to in this Deed and which are reasonably required to evidence the legality, validity and enforceability of the obligations of the parties to, or in connection with, any of the Documents.
|
SIGNED as a deed by
|
)
|
||
DRILLSHIP KITHIRA OWNERS INC.
|
)
|
/s/ Dimitrios Glynos
|
|
acting by its attorney Dimitrios Glynos
|
)
|
Drillship Kithira Owners Inc. by its attorney
|
|
in the presence of:
|
)
|
||
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street - 15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
||
DRYSHIPS INC.
|
)
|
/s/ Dimitrios Glynos
|
|
acting by its attorney Dimitrios Glynos
|
)
|
Dryships Inc. by its attorney
|
|
in the presence of:
|
)
|
||
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street - 15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
||
OCEAN RIG UDW INC.
|
)
|
/s/ Dimitrios Glynos
|
|
acting by its attorney Dimitrios Glynos
|
)
|
Ocean Rig UDW Inc. by its attorney
|
|
in the presence of:
|
)
|
||
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street - 15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
||
OCEAN RIG POSEIDON OPERATIONS INC.
|
)
|
/s/ Dimitrios Glynos
|
|
)
|
Ocean Rig Poseidon Operations Inc.
by its attorney
|
||
by its attorney Dimitrios Glynos
in the presence of: |
)
)
|
||
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street - 15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
||
DRILLSHIPS INVESTMENT INC.
|
)
|
/s/ Dimitrios Glynos
|
|
acting by its attorney Dimitrios Glynos
|
)
|
Drillships Investment Inc. by its attorney
|
|
in the presence of:
|
)
|
||
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street - 15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
SIGNED as a deed by
|
)
|
||
KITHIRA SHAREHOLDERS INC.
|
)
|
/s/ Dimitrios Glynos
|
|
acting by its attorney Dimitrios Glynos
|
)
|
Kithira Shareholders Inc. by its attorney
|
|
in the presence of:
|
)
|
||
Witness’s Signature:
|
/s/ Nikiforos G. Sifakis
|
||
Name:
|
Nikiforos G. Sifakis
|
||
Attorney-at-Law
|
|||
Address:
|
52, Ag. Konstantinou Street - 15124 Marousi
|
||
Athens, Greece
|
|||
Tel: +302106140810
|
|||
Fax: +302106140267
|
The Facility Agent for itself and on behalf of each Lender
|
|
By: /s/ M. Heinemann
|
/s/ Ewerhardy
|
M. Heinemann
|
Ewerhardy
|
as authorized signatory for
|
|
DEUTSCHE BANK LUXEMBOURG S.A.
|
|
The Security Trustee
|
|
By: /s/ Carola Roth
|
/s/ Dr. Bastian [Illegible]
|
Carola Roth
|
Dr. Bastian [Illegible]
|
as authorized signatory for
|
|
DEUTSCHE BANK AG FILIALE DEUTSCHLANDESCHAFT
|
|
The Bookrunner and Mandated Lead Arranger
|
|
By: /s/ Ross D. Cloney
|
/s/ Daniel Pietrzak
|
Ross D. Cloney
|
Daniel Pietrzak
|
Authorised Signatory
|
Managing Director
|
as authorized signatory for
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
|
The Account Bank
|
|
By: /s/ Ross D. Cloney
|
/s/ Daniel Pietrzak
|
Ross D. Cloney
|
Daniel Pietrzak
|
Authorised Signatory
|
Managing Director
|
as authorized signatory for
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
The Swap Bank
|
|
By: /s/ Ross D. Cloney
|
/s/ Daniel Pietrzak
|
Ross D. Cloney
|
Daniel Pietrzak
|
Authorised Signatory
|
Managing Director
|
as authorized signatory for
|
|
DEUTSCHE BANK AG, LONDON BRANCH
|
(1)
|
DRYSHIPS INC. a company organized and existing under the laws of Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “Dryships”); and
|
(2)
|
CARDIFF MARINE INC., a company organized and existing under the laws of Liberia having its registered office at 80 Broad Street, Monrovia, Liberia (the “Cardiff”)
|
A.
|
Dryships and Cardiff have entered into a Global Services Agreement dated 1st December 2010 (the “Global Services Agreement”) pursuant to which Cardiff was engaged to act as consultant on matters of chartering and sale and purchase transactions for the offshore drilling units operated by the majority owned subsidiary of Dryships, Ocean Rig UDW Inc.
|
B.
|
In consideration of above services, Cardiff is entitled to receive from Dryships 1% fee in connection with chartering arrangements and 0.75% in connection with sale and purchase activities.
|
C.
|
Pursuant to Clause 9.2 of the Global Services Agreement, the Global Services Agreement may be terminated at any time by mutual agreement by the Parties.
|
D.
|
In above context, the Parties have mutually agreed to terminate the Global Services Agreement.
|
1.
|
THAT the Global Services Agreement shall be terminated and shall be no longer in force and effect with effect as of 1st January 2013 (the “Effective Date”).
|
2.
|
THAT from the Effective Date the Parties hereby mutually release and discharge each other from and against any and all costs, damages, liabilities, and/or claims whatsoever which either of the Parties hereto now has or may hereafter have, against the other Party hereto, by reason of, or in connection with the Global Services Agreement and/or the termination of the Global Services Agreement pursuant to the provisions of this Agreement.
|
For and on behalf of
DRYSHIPS INC.
/s/ Ziad Nakhleh
Name: Ziad Nakhleh
Title: Chief Financial Officer
|
For and on behalf of
CARDIFF MARINE INC.
/s/ Haris Alivizatos
Name: Haris Alivizatos
Title: Legal Representative
|
|
(i)
|
Identifying, sourcing, negotiating and arranging new employment for the offshore drilling assets of UDW.
|
|
(ii)
|
Identifying, sourcing, negotiating and arranging the sale or purchase of offshore drilling assets of UDW.
|
4.
|
FEES
|
5.
|
DUTIES
|
6.1
|
The Consultant shall be entitled to procure performance of the Consultant’s obligations hereunder by its parent, subsidiary or associated companies or (in the case of other services) third parties (hereinafter collectively called the “Sub-Consultant”) in accordance with the following provisions of this Clause 6.1:
|
|
(i)
|
The Company hereby agrees with the Consultant that insofar as a Sub-Consultant performs the obligations of the Consultant, the Sub-Consultant shall be entitled to the benefits of the provisions of Clause 9; and
|
|
(ii)
|
Any performance of the Consultant’s obligations by the Sub-Consultant shall be without prejudice to the rights of the Company hereunder for any failure by the Consultant in performance of the Consultant’s duties and obligations hereunder and notwithstanding performance by the Sub-Consultant, the Consultant shall remain solely responsible to the Company for performance of its obligations hereunder.
|
6.2
|
The provision of Clause 6.1 shall remain in force notwithstanding termination of this Agreement.
|
7.
|
RESPONSIBILITIES
|
7.1
|
FORCE MAJEURE
|
7.2
|
INDEMNITY – GENERAL
|
7.3
|
INDEMNITY – TAX
|
7.4
|
“HIMALAYA”
|
7.5
|
The provisions of Clause 7 shall remain in force notwithstanding termination of this Agreement
|
8.
|
DURATION
|
9.
|
TERMINATION OF AGREEMENT
|
9.1
|
At the end of its term unless extended by mutual agreement
|
9.2
|
The parties by mutual agreement may terminate this Agreement at any time
|
9.3
|
The Company may opt to terminate this Agreement by written notice to the Consultant prior to actual termination date by observing a prior written notice period of thirty (30) days
|
9.4
|
TERMINATION BY DEFAULT – THE COMPANY
|
(i)
|
The Consultant shall be entitled to terminate the Agreement with immediate effect by notice in writing if any moneys due to the Consultant from the Company shall not have been received in the Consultant’s nominated account within ten (10) days of payment having been requested in writing by the Consultant or if the Company fails to comply with the requirements of Clauses 4 and 7.
|
(ii)
|
If the Company fails to meet its obligations hereunder in any material respect for reasons within its control.
|
9.5
|
TERMINATION BY DEFAULT – THE CONSULTANT
|
10.
|
CONFIDENTIALITY
|
10.1
|
Save for the purpose of the enforcing or carrying out as may be necessary their respective rights or obligations, each party agrees to maintain and to use all reasonable endeavors to procure that their respective officers and employees maintain confidentiality and secrecy in respect of all information relating to the other’s business received by it directly or indirectly pursuant to this Agreement.
|
10.2
|
As between the Company and the Consultant, the Company hereby agrees and acknowledges that all title and property in and to the management manuals of the Consultant and other written material of the Consultant concerning management functions and activities developed by the Consultant is vested in the Consultant and the Company agrees not to disclose the same to any third party except as required by law or applicable regulation or rule and, on the termination of this Agreement, to return all such manuals and other materials to the Consultant. For the purposes of this Clause reference to “the Consultant” includes the parent, subsidiary and associated companies of the Consultant and any third parties providing services to the Company under this Agreement.
|
11.
|
LAW AND ARBITRATION
|
11.1
|
This Agreement shall be governed by English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof for the time being in force.
|
11.2
|
The arbitration shall be conducted in accordance with the London Maritime Arbitrators’ (LMAA) Terms current at the time when the arbitration is commenced.
|
11.3
|
Save as mentioned below, the reference shall be to three arbitrators, one to be appointed by each party and the third by the two so appointed. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment to the other party requiring the other party to appoint its arbitrator within 14 days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and give notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring the dispute to arbitration may, without the requirement of any further prior notice to the other party accordingly. The award of a sole arbitrator shall be as binding as if he had been appointed by agreement.
|
11.4
|
In cases where neither the claim nor any counterclaim exceeds the sum of USD 50,000 (or such other sum as the parties may agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
|
12.
|
NOTICES
|
12.1
|
Any notice or other communication required to be given or made hereunder shall be in writing and may be served by sending same by registered airmail, electronic-mail, telex, facsimile or by delivering the same (against receipt) to the address of the party to be served to such address as may from time to time be notified by the party for the purpose.
|
12.2
|
Any notice served by post as aforesaid shall be deemed conclusively duly served five days after the same shall have posted. Notices served by telex or facsimile as aforesaid shall be deemed conclusively to have been served on the day following of the same, provided evidence of transmission appears on the particular notice.
|
13.
|
CHANGE OF CONTROL
|
13.1
|
In the event of a “Change of Control” during the term of this Agreement, the Consultant may terminate this Agreement and cease providing the abovementioned services to the Company within three (3) months following such Change in Control.
|
13.2
|
For the purposes of this Agreement, the term “Change of Control” shall mean the:
|
(i)
|
Acquisition by any individual, entity or group of beneficial ownership of fifty percent (50%) or more of either (A) the then-outstanding shares of common stock of UDW or (B) the combined voting power of the then-outstanding voting securities of UDW entitled to vote generally in the election of directors other than by DryShips Inc. of Marshall Islands, currently being the majority shareholder of UDW;
|
(ii)
|
Consummation of a reorganization, merger or consolidation of UDW or the sale or other disposition of all or substantially all of the assets of UDW; or
|
(iii)
|
Approval by the shareholders of the Company and/or UDW of a complete liquidation or dissolution of the Company and/or UDW.
|
14.
|
ENTIRE AGREEMENT
|
14.1
|
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of the Agreement; and (in relation to such subject matter) supersedes all prior discussions, understandings and agreements between the parties and all prior representations and expressions of opinion by the parties.
|
14.2
|
Each of the parties acknowledges that it is not relying on any statements, warranties, representations or understandings (whether negligently or innocently made) given or made by or on behalf of the other in relation to the subject matter hereof and that it shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement. The only remedy available shall be for breach of contract under the terms of this Agreement without consequential, special or punitive damages. Nothing in this clause shall, however, operate to limit or exclude any liability for willful cause of loss.
|
14.3
|
For the avoidance of doubt it is noted that the provisions of this Agreement take precedence and prevail over any other provisions in any earlier agreement between the parties.
|
(1)
|
DRYSHIPS INC. a company organized and existing under the laws of Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "Dryships"); and
|
(2)
|
VIVID FINANCE LIMITED, a company organized and existing under the laws of Cyprus and having its registered office at 10 Skopa street, Nicosia, Cyprus (the "Vivid")
|
For and on behalf of
DRYSHIPS INC.
/s/ Ziad Nakhleh
Name: Ziad Nakhleh
Title: Chief Financial Officer
|
For and on behalf of
VIVID FINANCE LIMITED
/s/ Yiannoula Georghiades
Name: Yiannoula Georghiades
Title: Sole Director
|
3.
|
SCOPE OF WORKS
|
(i)
|
Identifying, sourcing, negotiating and arranging new loan and credit facilities with lenders/financial institutions
|
(ii)
|
Raising equity or debt in the public capital markets
|
(iii)
|
Identifying, sourcing, negotiating and arranging interest rate swaps agreements, foreign currency contracts and forward exchange contracts.
|
(iv)
|
Renegotiating existing loan facilities, bonds etc.
|
4.
|
FEES
|
In consideration of such services the Consultant shall receive a fee of twenty basis points (0.20%) on the total transaction amount.
|
5.
|
DUTIES
|
6.
|
THE CONSULTANT’S RIGHT TO SUB-CONTRACT
|
6.1
|
The Consultant shall be entitled to procure performance of the Consultant’s obligations hereunder by its parent, subsidiary or associated companies or (in the case of other services) third parties (hereinafter collectively called the “Sub-Consultant”) in accordance with the following provisions of this Clause 6.1:
|
(i)
|
Any such performance of all or any of the Consultant’s obligations by the Sub-Consultant shall be and constitute full and sufficient performance by the Consultant of their obligations hereunder;
|
(ii)
|
The Company hereby agrees with the Consultant that insofar as Sub-Consultant performs the obligations of the Consultant, the Sub-Consultant shall be entitled to the benefits of the provisions of Clause 9; and
|
(iii)
|
Any performance of the Consultant’s obligations by the Sub-Consultant shall be without prejudice to the rights of the Company hereunder for any failure by the Consultant in performance of the Consultant’s duties and obligations hereunder and notwithstanding performance by the Sub-Consultant, the Consultant shall remain solely responsible to the Company for performance of its obligations hereunder.
|
6.2
|
The provision of Clause 6.1 shall remain in force notwithstanding termination of this Agreement.
|
7.
|
RESPONSIBILITIES
|
7.1
|
FORCE MAJEURE
|
7.5
|
The provisions of Clause 7 shall remain in force notwithstanding termination of this Agreement.
|
8.
|
DURATION
|
9.1
|
At the end of its term unless extended by mutual agreement
|
9.2
|
The parties by mutual agreement may terminate this Agreement at any time
|
9.3
|
The Company may opt to terminate this Agreement by written notice to the Consultant prior to actual termination date by observing a prior written notice period of thirty (30) days
|
|
(i)
|
The Consultant shall be entitled to terminate the Agreement with immediate effect by notice in writing if any moneys requested by the Consultant from the Company shall not have been received in the Consultant’s nominated account within ten (10) days of payment having been requested in writing by the Consultant or if the Company fails to comply to the reasonable satisfaction of the Consultant with the requirements of Clauses 4 and 7.
|
|
(ii)
|
If the Company fails to meet its obligations hereunder in any material respect for reasons within its control.
|
10.
|
CONFIDENTIALITY
|
10.1
|
Save for the purpose of the enforcing or carrying out as may be necessary their respective rights or obligations, each party agrees to maintain and to use all reasonable endeavors to procure that their respective officers and employees
|
10.2
|
As between the Company and the Consultant, the Company hereby agrees and acknowledges that all title and property in and to the management manuals of the Consultant and other written material of the Consultant concerning management functions and activities is vested in the Consultant and the Company agrees not to disclose the same to any third party and, on the termination of this Agreement, to return all such manuals and other materials to the Consultant. For the purposes of this Clause reference to “the Consultant” includes the parent, subsidiary and associated companies of the Consultant and any third parties providing services.
|
11.
|
LAW AND ARBITRATION
|
11.1
|
This Agreement shall be governed by English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof for the time being in force.
|
11.2
|
The arbitration shall be conducted in accordance with the London Maritime Arbitrators’ (LMAA) Terms current at the time when the arbitration is commenced.
|
11.3
|
Save as mentioned below, the reference shall be to three arbitrators, one to be appointed by each party and the third by the two so appointed. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment to the other party requiring the other party to appoint its arbitrator within 14 days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and give notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring the dispute to arbitration may, without the requirement of any further prior notice to the other party accordingly. The award of a sole arbitrator shall be as binding as if he had been appointed by agreement.
|
11.4
|
In cases where neither the claim nor any counterclaim exceeds the sum of USD 50,000 (or such other sum as the parties may agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
|
12.
|
NOTICES
|
12.1
|
Any notice or other communication required to be given or made hereunder shall be in writing and may be served by sending same by registered airmail, electronic-mail, telex, facsimile or by delivering the same (against receipt) to the address of the party to be served to such address as may from time to time be notified by the party for the purpose.
|
12.2
|
Any notice served by post as aforesaid shall be deemed conclusively duly served five days after the same shall have posted. Notices served by telex aforesaid shall be deemed conclusively to have been served on the day following of the same, provided evidence of transmission appears on the particular notice.
|
13.
|
CHANGE OF CONTROL
|
13.1
|
In the event of a “Change of Control”, during the term of this Agreement, the Consultant has the option to terminate this Agreement, cease providing the abovementioned services to the Company within three (3) months following such Change in Control.
|
13.2
|
For the purposes of this Agreement, the term “Change of Control” shall mean the:
|
(i)
|
Acquisition by any individual, entity or group of beneficial ownership of fifty percent (50%) or more of either (A) the then-outstanding shares of common stock of UDW or (B) the combined voting power of the then-outstanding voting securities of UDW entitled to vote generally in the election of directors, other than by Dryships Inc. of Marshall Islands, currently being the majority shareholder of UDW.
|
(ii)
|
Consummation of a reorganization, merger or consolidation of UDW or the sale or other disposition of all or substantially all of the assets of UDW ; or
|
(iii)
|
Approval by the shareholders of the Company and/or UDW of a complete liquidation or dissolution of the Company and/or UDW.
|
14.
|
ENTIRE AGREEMENT
|
14.1
|
This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of the Agreement; and (in relation to such subject matter) supersedes all prior discussions, understandings and agreements between the parties and all prior representations and expressions of opinion by the parties.
|
14.2
|
Each of the parties acknowledges that it is not relying on any statements, warranties, representations or understandings (whether negligently or innocently made) given or made by or on behalf of the other in relation to the subject matter hereof and that it shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement. The only remedy available shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for willful cause of loss.
|
14.3
|
For the avoidance of doubt it is noted that the provisions of this Agreement take precedence and prevail over any other provisions in any earlier agreement between the parties.
|
|
FACILITIES AGREEMENT
|
Clause
|
Page
|
|
1
|
Definitions and Interpretation
|
2
|
2
|
The Facilities
|
24
|
3
|
Purpose
|
25
|
4
|
Conditions of Utilisation
|
25
|
5
|
Utilisation
|
27
|
6
|
Repayment
|
29
|
7
|
Prepayment and Cancellation
|
30
|
8
|
Interest
|
33
|
9
|
Interest Periods
|
34
|
10
|
Changes to the Calculation of Interest
|
35
|
11
|
Fees
|
36
|
12
|
Tax Gross Up and Indemnities
|
37
|
13
|
Increased Costs
|
39
|
14
|
Other Indemnities
|
40
|
15
|
Mitigation by the Lenders
|
42
|
16
|
Costs and Expenses
|
43
|
17
|
Guarantee and Indemnity
|
44
|
18
|
Representations
|
47
|
19
|
Information Undertakings
|
53
|
20
|
Financial Covenants
|
55
|
21
|
General Undertakings
|
57
|
22
|
Insurance Undertakings
|
63
|
23
|
Drillship Undertakings
|
68
|
24
|
Security Cover
|
72
|
25
|
Application of Earnings
|
73
|
26
|
Events of Default
|
73
|
27
|
Recourse Requirements and Rights of Subrogation
|
78
|
28
|
Changes to the Lenders
|
79
|
29
|
Changes to the Obligors
|
83
|
30
|
The Facility Agent and the Mandated Lead Arrangers
|
84
|
31
|
The Security Agent
|
91
|
32
|
Conduct of Business by the Finance Parties
|
100
|
33
|
Sharing Among the Finance Parties
|
101
|
34
|
Payment Mechanics
|
103
|
35
|
Set-Off
|
106
|
36
|
Notices
|
106
|
37
|
Calculations and Certificates
|
108
|
38
|
Partial Invalidity
|
108
|
39
|
Remedies and Waivers
|
108
|
40
|
Settlement or Discharge Conditional
|
109
|
41
|
Irrevocable Payment
|
109
|
42
|
Amendments and Waivers
|
109
|
43
|
Confidentiality
|
110
|
44
|
Counterparts
|
112
|
45
|
Governing Law
|
113
|
46
|
Enforcement
|
113
|
Schedules
|
||
Schedule 1
|
The Parties
|
114
|
Schedule 2
|
Conditions Precedent
|
120
|
Schedule 3
|
Requests
|
126
|
Schedule 4
|
Mandatory Cost Formulae
|
128
|
Schedule 5
|
Form of Transfer Certificate
|
130
|
Schedule 6
|
Form of Assignment Agreement
|
132
|
Schedule 7
|
Form of Compliance Certificate
|
134
|
Schedule 8
|
Form of Accession Letter
|
136
|
Schedule 9
|
Repayments
|
137
|
Schedule 10
|
Form of Prepayment/ Cancellation Notice
|
141
|
Schedule 11
|
Timetables
|
142
|
Schedule 12
|
Corporate Structure
|
143
|
Execution
|
||
Execution Pages
|
145
|
|
|
(1)
|
DRILLSHIPS OCEAN VENTURES INC., a company incorporated under the laws of the Marshall Islands with registered number 55652 whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as borrower (the "Borrower");
|
(2)
|
THE COMPANIES listed in Part B of Schedule 1 (Guarantors and Drillships) as original guarantors (the "Original Guarantors");
|
(3)
|
THE FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original commercial lenders (the "Original Commercial Lenders");
|
(4)
|
THE EXPORT-IMPORT BANK OF KOREA of 16-1, Yeouido-dong, Yeongdeungpo-gu, Seoul, 150-996, Republic of Korea ("Kexim");
|
(5)
|
EKSPORTKREDITT NORGE AS of Hieronymus Heyerdahls gate 1, 0160 Oslo, Norway ("Eksportkreditt" and together with Kexim, the "ECA Lenders");
|
(6)
|
DNB BANK ASA and NORDEA BANK FINLAND PLC., LONDON BRANCH as bookrunners (the "Bookrunners");
|
(7)
|
DNB BANK ASA, NORDEA BANK FINLAND PLC., LONDON BRANCH, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL), SWEDBANK AB (PUBL) and ABN AMRO BANK N.V., OSLO BRANCH as mandated lead arrangers (the "Mandated Lead Arrangers");
|
(8)
|
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and
|
(9)
|
DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent").
|
1
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
|
(b)
|
in relation to any proposed Utilisation, the amount of its participation in any Advance that is due to be made on or before the proposed Utilisation Date.
|
|
(a)
|
the interest which a Lender should have received for the period from the date of
|
|
(b)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
|
(a)
|
cash in hand legally and beneficially owned by a member of the Group; and
|
|
(b)
|
cash deposits legally and beneficially owned by that member of the Group, and which are deposited with (i) a Lender, (ii) any other deposit taking institution having a rating of at least A- from Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe acceptable to the Facility Agent (acting with the authorisation of the Majority Lenders) or (iii) any other bank or financial institution approved by the Facility Agent (acting with the authorisation of the Majority Lenders) which in each case:
|
|
(i)
|
is free from any Security, other than pursuant to the Transaction Security;
|
|
(ii)
|
is otherwise at the free and unrestricted disposal of the relevant member of the Group by which it is owned; and
|
|
(iii)
|
in the case of cash deposits held by a member of the Group other than an Obligor, is (in the opinion of the Facility Agent, based upon such documents and evidence as the Facility Agent may require the Borrower to provide in order to form the basis of such opinion) capable or, upon the occurrence of an Event of Default under this Agreement, would become capable of being paid without restriction to an Obligor within five Business Days of its request or demand therefore either by way of a dividend or by way of a repayment of principal (or the payment of interest thereon) in respect of an intercompany loan from the relevant Obligor to that member of the Group.
|
|
(a)
|
any investment in marketable debt obligations issued or guaranteed by (i) a government or (ii) an instrumentality or agency of a government and in respect of (i) and (ii) having a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
|
|
(b)
|
commercial paper (debt obligations) not convertible or exchangeable to any other security:
|
|
(i)
|
for which a recognised trading market exists;
|
|
(ii)
|
issued by an issuer incorporated in the United States of America, the United Kingdom or Norway;
|
|
(iii)
|
which matures within one year after the relevant date of calculation; and
|
|
(iv)
|
which has a credit rating of at least A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe;
|
|
(c)
|
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Group Services or the equivalent with any other principal credit rating agency in the United States of America or Europe, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (b) above and (iii) can be turned into cash on not more than five days' notice; or
|
|
(d)
|
any other debt security approved by the Facility Agent (acting with the authorisation of the Majority Lenders),
|
|
(a)
|
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Commitment transferred to it under this Agreement; and
|
|
(b)
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
|
to the extent not cancelled, reduced or transferred by it under this Agreement.
|
|
(a)
|
any member of the Group or any of its advisers; or
|
|
(b)
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
|
(i)
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 43 (Confidentiality)); or
|
|
(ii)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
|
(iii)
|
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
|
(a)
|
account number 24.22.53.911 held with ABN AMRO Bank N.V. Rotterdam in the name of Drillships Holdings Inc.;
|
|
(b)
|
account number 0045383234 held with Nordea Bank Finland plc, London Branch in the name of Drillships Holdings Inc.;
|
|
(c)
|
account number 29344604 held with Deutsche Bank AG, London Branch in the name of Drillship Kithira Owners Inc.; and
|
|
(d)
|
account number 29344700 held with Deutsche Bank AG, London Branch in the name of Drillship Skopelos Owners Inc.
|
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:
|
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
|
(a)
|
in relation to Drillship Athena, Drillship Kythnos Owners Inc.;
|
|
(b)
|
in relation to Drillship Mylos, Drillship Skiathos Owners Inc.; and
|
|
(c)
|
in relation to Drillship Skyros, Drillship Skyros Owners Inc.
|
|
(a)
|
the following, save to the extent that any of them is, with the prior written consent of the Majority Lenders, pooled or shared with any other person:
|
|
(i)
|
all freight, hire and passage moneys;
|
|
(ii)
|
compensation payable to that Obligor or the Security Agent in the event of requisition of that Drillship 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 Charter;
|
|
(vi)
|
all moneys which are at any time payable under any Insurances in respect of loss of hire;
|
|
(vii)
|
all monies which are at any time payable to that Obligor in respect of general average contribution; and
|
|
(b)
|
if and whenever that Drillship is employed on terms whereby any moneys falling within paragraphs (i) to (vii) above 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 Drillship.
|
|
(a)
|
any release, emission, spill or discharge into that Drillship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from that Drillship; or
|
|
(b)
|
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than that Drillship and which involves a collision between that Drillship and such other vessel or some other incident of navigation or operation, in either case, in connection with which that Drillship is actually or potentially liable to be arrested, attached, detained or injuncted and/or that Drillship and/or any Obligor and/or the Manager, Client or any other operator of that Drillship 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, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from that Drillship and in connection with which that Drillship is actually or potentially liable to be arrested and/or where any Obligor and/or the Manager, Client or any other operator of that Drillship is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
|
|
(a)
|
this Agreement;
|
|
(b)
|
any Fee Letter;
|
|
(c)
|
any Hedging Agreement;
|
|
(d)
|
the Accounts Securities;
|
|
(e)
|
the Shares Securities;
|
|
(f)
|
the Mortgages;
|
|
(g)
|
the General Assignments;
|
|
(h)
|
the Manager's Undertaking;
|
|
(i)
|
any other document (whether or not it creates Security) which is executed as security for, or for the purpose of establishing a priorities subordination arrangement in relation to, the Secured Liabilities; and
|
|
(j)
|
any other document designated as such by the Facility Agent and the Borrower.
|
|
(a)
|
moneys borrowed;
|
|
(b)
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the applicable Accounting Principles, be treated as a finance or capital lease;
|
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
|
(f)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
|
(g)
|
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
|
|
(h)
|
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
|
(i)
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
|
(a)
|
all policies and contracts of insurance, including entries of that Drillship in any protection and indemnity or war risks association, effected in respect of that Drillship, its Earnings or otherwise in relation to that Drillship; and
|
|
(b)
|
all rights and other assets relating to, or derived from, any of such policies, contracts or entries, including any rights to a return of premium.
|
|
(a)
|
the ECA Lenders;
|
|
(b)
|
the Original Commercial Lenders; and
|
|
|
(c)
|
any New Lender,
|
|
(a)
|
the applicable Screen Rate; or
|
|
(b)
|
(if no Screen Rate is available for dollars for the Interest Period of that Advance, that Facility or that Unpaid Sum), the Reference Bank Rate,
|
|
(a)
|
if no Advance has yet been made, a Lender or Lenders whose Commitments aggregate more than 66% per cent. of the Total Commitments; or
|
|
(b)
|
at any other time, a Lender or Lenders whose participations in the Loan aggregate more than 66% per cent. of the amount of the Loan then outstanding or, if the Loan has been repaid or prepaid in full, a Lender or Lenders whose participations in the
|
|
(a)
|
as at a date not more than 14 days previously;
|
|
(b)
|
by minimum two Approved Shipbrokers;
|
|
(c)
|
with or without physical inspection of that Drillship (as the Facility Agent may require); and
|
|
(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 charter contract,
|
|
(a)
|
the business, operations, property, condition (financial or otherwise) or prospects of any member of the Group or the Group as a whole; or
|
|
(b)
|
the ability of any Obligor to perform its obligations under any Finance Document; or
|
|
(c)
|
the validity or enforceability of, or the effectiveness or ranking of any Security granted or intended to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
|
(a)
|
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
|
(b)
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
|
(c)
|
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
|
(a)
|
Security created by the Finance Documents;
|
|
(b)
|
liens for unpaid master's and current crew's wages in accordance with usual maritime practice;
|
|
(c)
|
liens for salvage;
|
|
(d)
|
any ship repairer's or outfitter's possessory lien arising by operation of law and not exceeding USD 2,500,000; and
|
|
(e)
|
any other liens incurred in the ordinary course of operating such Drillship not exceeding USD 2,500,000.
|
|
(a)
|
its jurisdiction of incorporation;
|
|
(b)
|
any jurisdiction where any asset subject to, or intended to be subject to, any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party is situated;
|
|
(c)
|
any jurisdiction where it conducts its business; and
|
|
(d)
|
the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party.
|
|
(a)
|
any expropriation, confiscation, requisition or acquisition of that Drillship, 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 (excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension) unless it is within 30 days redelivered to the full control of the relevant Drillship Owner; and
|
|
(b)
|
any arrest, capture, seizure or detention of that Drillship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the relevant Drillship Owner.
|
|
(a)
|
imposed by law or regulation of the United Kingdom, the Council of the European Union, the United Nations or its Security Council;
|
|
(b)
|
imposed by CISADA; or
|
|
(c)
|
otherwise imposed by any law or regulation,
|
|
(a)
|
in relation to the Drillship Mylos, 31 July 2013;
|
|
(b)
|
in relation to the Drillship Skyros, 31 October 2013; and
|
|
(c)
|
in relation to the Drillship Athena, 30 November 2013.
|
|
(a)
|
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that T ransaction Security;
|
|
(b)
|
all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Secured Parties;
|
|
(c)
|
the Security Agent's interest in any turnover trust created under the Finance Documents;
|
|
(d)
|
any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties,
|
|
except:
|
|
(i)
|
rights intended for the sole benefit of the Security Agent; and
|
|
(ii)
|
any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement.
|
|
(a)
|
in relation to the Drillship Mylos, the shipbuilding contract entered into between Drillship Skiathos Owners Inc. and the Builder dated 18 April 2011;
|
|
(b)
|
in relation to the Drillship Skyros, the shipbuilding contract entered into between Drillship Skyros Owners Inc. and the Builder dated 27 April 2011; and
|
|
(c)
|
in relation to the Drillship Athena, the shipbuilding contract entered into between Drillship Kythnos Owners Inc. and the Builder dated 23 June 2011.
|
|
(a)
|
has direct or indirect control; or
|
|
(b)
|
owns directly or indirectly more than fifty (50) per cent (votes and/or capital), for the purpose of paragraph (a), an entity shall be treated as being controlled by a person if that person is able to direct its affairs and/or control the composition of its board of directors or equivalent body.
|
|
(a)
|
in relation to the Commercial Athena Facility, USD 150,000,000;
|
|
(b)
|
in relation to the Commercial Mylos Facility, USD 150,000,000; and
|
|
(c)
|
in relation to the Commercial Skyros Facility, USD 150,000,000,
|
|
(a)
|
in relation to the Eksportkreditt GIEK Athena Facility, USD 150,000,000;
|
|
(b)
|
in relation to the Eksportkreditt GIEK Mylos Facility, USD 150,000,000; and
|
|
(c)
|
in relation to the Eksportkreditt GIEK Skyros Facility, USD 150,000,000,
|
|
(a)
|
in relation to the Kexim Athena Facility, USD 150,000,000;
|
|
(b)
|
in relation to the Kexim Mylos Facility, USD 150,000,000; and
|
|
(c)
|
in relation to the Kexim Skyros Facility, USD 150,000,000,
|
|
(a)
|
actual, constructive, compromised, agreed or arranged total loss of that Drillship; or
|
|
(b)
|
any Requisition.
|
|
(a)
|
in the case of an actual loss of that Drillship, the date on which it occurred or, if that is unknown, the date when that Drillship was last heard of;
|
|
(b)
|
in the case of a constructive, compromised, agreed or arranged total loss of that Drillship, the earlier 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 or the relevant Drillship Owner with that Drillship's insurers in which the insurers agree to treat that Drillship as a total loss; and
|
|
(c)
|
in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
|
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
|
(b)
|
the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
|
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
(a)
|
Unless a contrary indication appears, a reference in this Agreement to:
|
|
(i)
|
the "Account Bank", the "Facility Agent", a "Mandated Lead Arranger", the "Security Agent", any "Hedge Counterparty", any "Finance Party", any "Secured Party", any "Obligor" or any other "person" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
|
(ii)
|
"assets" includes present and future properties, revenues and rights of every description;
|
|
(iii)
|
"contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained;
|
|
(v)
|
"expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT;
|
|
(vi)
|
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;
|
|
(vii)
|
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
|
(viii)
|
"law" includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;
|
|
(ix)
|
"proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure;
|
|
(x)
|
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
|
(xi)
|
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
|
(xiv)
|
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of a jurisdiction other than England, be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
|
|
(xvi)
|
"including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used.
|
(b)
|
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(c)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d)
|
A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
|
(a)
|
in a form attached to a certificate dated the same date as this Agreement (and signed by the Borrower and the Facility Agent); or
|
(b)
|
in any other form agreed in writing between the Borrower and the Facility Agent acting with the authorisation of all Lenders.
|
(a)
|
Unless expressly provided to the contrary in a Finance Document including but not limited to Clause 11.3 (Fees payable in respect of the GIEK Guarantee), Clause 16 (Costs and expenses) and Clause 27 (Recourse Requirements and Rights of Subrogation), a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b)
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
(c)
|
Any Receiver, Delegate or any other person described in Clause 31.13 (No proceedings) may, subject to this Clause 1.5 (Third party rights) and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights on it.
|
2
|
THE FACILITIES
|
2.1
|
The Facilities
|
(a)
|
term loan facilities which the Commercial Lenders make available in an aggregate principal amount equal to the Total Commercial Facility Loans Commitments, being:
|
|
(i)
|
a USD 150,000,000 term loan facility in relation to the Drillship Athena (the "Commercial Athena Facility");
|
|
(ii)
|
a USD 150,000,000 term loan facility in relation to the Drillship Mylos (the "Commercial Mylos Facility"); and
|
|
(iii)
|
a USD 150,000,000 term loan facility in relation to the Drillship Skyros (the "Commercial Skyros Facility").
|
(b)
|
term loan facilities which Eksportkreditt makes available in an aggregate principal amount equal to the Total Eksportkreditt GIEK Facility Loans Commitments, being :
|
|
(i)
|
a USD 150,000,000 term loan facility in relation to the Drillship Athena (the "Eksportkreditt GIEK Athena Facility");
|
|
(ii)
|
a USD 150,000,000 term loan facility in relation to the Drillship Mylos (the "Eksportkreditt GIEK Mylos Facility"); and
|
|
(iii)
|
a USD 150,000,000 term loan facility in relation to the Drillship Skyros (the "Eksportkreditt GIEK Skyros Facility").
|
(a)
|
term loan facilities which the Kexim make available in an aggregate principal amount equal to the Total Kexim Facility Loans Commitments, being:
|
|
(i)
|
a USD 150,000,000 term loan facility in relation to the Drillship Athena (the "Kexim Athena Facility");
|
2.2
|
Finance Parties' rights and obligations
|
(a)
|
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(a)
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
(c)
|
A Finance Party may not, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
(d)
|
Notwithstanding any other provision of the Finance Documents, a Finance Party may separately sue for any Unpaid Sum due to it without the consent of any other Finance Party or joining any other Finance Party to the relevant proceedings.
|
(a)
|
that the Norwegian Equipment has been delivered in accordance with the terms of the respective equipment contracts; and
|
(b)
|
that the Norwegian Contract Value exceed at least 125 per cent. of the aggregate of Eksportkreditt's participation in all Advances already made (if any) and to be made through the proposed Utilisation.
|
4.3
|
Further conditions precedent
|
(a)
|
no Default is continuing or would result from the proposed Advance;
|
(b)
|
the Repeating Representations to be made by each Obligor are true;
|
(c)
|
no event described in Clause 7.3 (Change of control) paragraph (a) has occurred;
|
(d)
|
the Facility Agent has received, or is satisfied it will receive when the Advance is made available, all of the documents and other evidence listed in Part C of Schedule 2 (Conditions Precedent to each Utilisation) in form and substance satisfactory to the Facility Agent.
|
5
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
(a)
|
The Borrower may utilise a Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
|
(b)
|
The Borrower may not deliver more than one Utilisation Request in respect of the same Facility. All three Facilities relating to the same Drillship must be utilised on the same Utilisation Date.
|
(a)
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
|
(i)
|
it specifies whether it is for the Commercial Athena Facility Loan, Commercial Mylos Facility Loan, Commercial Skyros Facility Loan, Eksportkreditt GIEK Athena Facility Loan, Eksportkreditt GIEK Mylos Facility Loan, Eksportkreditt GIEK Skyros Facility Loan, Kexim Athena Facility Loan, Kexim Mylos Facility Loan or Kexim Skyros Facility Loan;
|
|
(ii)
|
the proposed Utilisation Date is the Delivery Date of the relevant Drillship and is a Business Day within the applicable Availability Period;
|
|
(iii)
|
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
|
|
(v)
|
it specifies the account of the Builder in accordance with the relevant Shipbuilding Contract and/or the account of the relevant Drillship Owner for reimbursement to that Drillship Owner of amounts already paid to the Builder.
|
(b)
|
Only one Advance may be requested in each Utilisation Request.
|
(a)
|
The currency specified in a Utilisation Request must be dollars.
|
(b)
|
The amount of the proposed Advance must be an amount which is not more than the amount available pursuant to Clause 2.1 (The Facilities).
|
(c)
|
Each Utilisation for a Drillship must be utilised equally across the three Facilities relating to that Drillship.
|
(d)
|
The amount of the proposed Advance must be an amount which would not oblige the Borrower to provide additional security or prepay part of the Advance if the ratio set out in Clause 24 (Security Cover) were applied immediately after the Advance was made.
|
(a)
|
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the Utilisation Date through its Facility Office.
|
(b)
|
Upon receipt of a Utilisation Request, the Facility Agent shall by the Specified Time notify each Lender of the details of the requested Advance and the amount of each Lender's participation.
|
6
|
REPAYMENT
|
6.1
|
Repayment of Advances
|
(a)
|
The Borrower shall repay each Advance by quarterly repayments in accordance with paragraph (c) below and Schedule 9 (Repayments) as attached hereto and updated thereafter pursuant to paragraph (e) below, each a "Repayment Instalment".
|
(b)
|
The repayment of each Advance shall commence on the first Repayment Date following the drawdown of that Advance and on each Repayment Date thereafter, as provisionally set out in Schedule 9 (Repayments) which has assumed that each Delivery Date will occur on its Scheduled Delivery Date and that there will be a full drawdown under each of the Facilities.
|
(c)
|
The Repayment Instalments under each Advance shall be calculated as follows:
|
|
(i)
|
the amount drawn under the relevant Facilities for each Drillship shall, subject also to complying with paragraph (ii) below, be equally split between the three Facilities, and thereafter spread equally across the maximum number of Repayment Dates available while at the same time ensuring compliance with paragraph (ii) below (up to and including the ECA Facilities Termination Date but in the case of each Commercial Facility with a balloon payment on the Commercial Facilities Termination Date aggregating all amounts thereunder then outstanding).
|
|
(ii)
|
the aggregate principal outstanding on the Commercial Facility Termination Date in relation to each Drillship shall be approximately but not exceeding USD 250,000,000. Taking account of the later Delivery Dates relative to the second and third Drillship and to achieve a similar aggregate principal outstanding on the Commercial Facility Termination Date of approximately (but not exceeding) USD 250,000,000 in relation to the Facilities for the second and third Drillship, the shortfall between USD 250,000,000 and what would otherwise have been the aggregate principal outstanding at the Commercial Facility Termination Date in relation to the Facilities for the second and third Drillship shall be allocated pro rata across all the scheduled instalments to be repaid under the relevant Commercial Facility up to and including the Commercial Facility Termination Date, as illustrated in Schedule 9 (Repayments).
|
(d)
|
Unless the Commercial Facilities have been renewed as contemplated in Clause 7.6 (GIEK /Kexim prepayment option), each of the Commercial Facility Loans shall be repaid in full on the Commercial Facility Termination Date.
|
(e)
|
Schedule 9 (Repayments) shall be updated based on the principles set out in this Clause 6.1 (Repayment of Advances), and such update shall be provided by the Facility Agent promptly following each Delivery Date (to the extent required).
|
7.1
|
Illegality
|
(a)
|
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
(b)
|
upon the Facility Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(c)
|
the Borrower shall repay that Lender's participation in the Facility concerned on the last day of the Interest Period for that Facility occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
(a)
|
If, without the prior written consent of all Lenders, any person or group of persons acting in concert, other than any Permitted Holders, obtains more than 33.3 per cent. (directly or indirectly) of the voting rights or share capital of the Parent:
|
|
(i)
|
the Parent shall promptly notify the Facility Agent upon becoming aware of that event; and
|
|
(ii)
|
the Facility Agent shall, by not less than 60 days' notice to the Borrower, cancel the Facilities and declare the Loan, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facilities will be cancelled and all such outstanding amounts will become immediately due and payable.
|
(b)
|
For the purpose of paragraph (a) above "acting in concert" means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively cooperate, through the acquisition directly or indirectly of shares in the Parent by any of them, either directly or indirectly, to obtain or consolidate control of the Parent.
|
(a)
|
The Borrower may, if it gives the Facility Agent not less than three Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD 10,000,000) of any unutilised Facility. Any cancellation under this Clause 7.4 (Voluntary and automatic cancellation) of a Facility or Facilities relating to a Drillship shall reduce the Commitments of the Lenders under the three Facilities for that Drillship rateably. Subject to the foregoing, any cancellation under this Clause 7.4 (Voluntary and automatic cancellation) of a Commercial Facility shall reduce the Commitments of the Commercial Lenders under the relevant Facility or Facilities (as the case can be) rateably.
|
(b)
|
The unutilised Commitment of each Lender in respect of any of the Athena Facilities, the Mylos Facilities and/or the Skyros Facilities shall be automatically cancelled at close of business on the Utilisation Date of that Facility.
|
(a)
|
The Borrower may, if it gives the Facility Agent not less than 60 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD 10,000,000).
|
(b)
|
Any partial prepayment under this Clause 7.5 (Voluntary prepayment of the Loan) shall be applied pro rata against the remaining scheduled Repayment Instalments under each of the Athena Facilities, the Mylos Facilities and the Skyros Facilities, including the Balloons, as set out in Clause 6.1 (Repayment of Advances).
|
(a)
|
In the event that the Commercial Facilities have not been extended hereunder by the Commercial Lenders or otherwise refinanced in each case on terms acceptable to the ECA Lenders and GIEK by the date falling 12 Months prior to the Commercial Facility Termination Date, GIEK (acting through Eksportkreditt) and the ECA Lenders shall each have the option, but not the obligation, to terminate the Eksportkreditt GIEK Facility Loans and the Kexim Facility Loans at the Commercial Facility Termination Date. Unless the Borrower has been notified in writing by the relevant ECA Lender no later than 60 days before the Commercial Facility Termination Date that GIEK and Eksportkreditt or Kexim (as the case may be) are satisfied with such terms and do not require prepayment, then such prepayment options in respect of each ECA Lender shall be deemed to have been exercised, and the Borrower shall prepay in full each of the Advances made by either or both ECA Lenders (as the case may be) (being the Eksportkreditt GIEK Facility Loans and/or the Kexim Facility Loans, as the case may be) on the Commercial Facility Termination Date without premium, penalty or additional costs of any kind.
|
(b)
|
This right of prepayment for the benefit of GIEK (acting through Eksportkreditt) and the ECA Lenders set out in paragraph (a) above shall thereafter also arise for GIEK (acting through Eksportkreditt) and each of the ECA Lenders at all other relevant times where the Commercial Facilities having been extended or refinanced for a further period pursuant to sub-clause (a) above have not been further extended or otherwise refinanced in each case on terms acceptable to the ECA Lenders and GIEK by the date falling 12 Months prior to the maturity date of so extended or refinanced Commercial Facilities, so long as any Eksportkreditt GIEK Facility Loans or Kexim Facility Loans remain at such time outstanding under this Agreement.
|
(a)
|
in the case such Drillship is sold or otherwise disposed of, on or before the date upon which the sale is completed by delivery of the Drillship to the buyer or disposal of such Drillship is otherwise completed; or
|
(b)
|
in the case of a Total Loss, on the earlier of (i) the date falling 120 days, or such later date as may be agreed by the Facility Agent (acting on the instructions of the Lenders), after the Total Loss Date and (ii) the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss.
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be substantially in the form of Schedule 10 (Form of Prepayment / Cancellation Notice) hereto and shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs pursuant to Clause 10.4 (Break Costs) and prepayment fee pursuant to Clause 7.11 (Prepayment fee) below, without premium or penalty.
|
(c)
|
The Borrower may not reborrow any part of a Facility which is prepaid.
|
(d)
|
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e)
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f)
|
If the Facility Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to the Borrower or all Lenders, as appropriate.
|
|
Any voluntary prepayment pursuant to Clause 7.5 (Voluntary prepayment of the Loan) made under any of the Kexim Facilities and any prepayment following a voluntary sale or disposal of any Drillship pursuant to Clause 7.8 (Mandatory prepayment on sale or Total Loss) under any of the Kexim Facilities shall be paid to the Facility Agent (for the account of Kexim) together with a fee for the account of Kexim in an amount equal to 50 basis points of the amount prepaid.
|
SECTION 5
|
COSTS OF UTILISATION
|
|
8
|
INTEREST
|
8.1
|
Calculation of interest
|
(a)
|
the Applicable Margin;
|
(b)
|
LIBOR; and
|
(c)
|
the Mandatory Cost, if any.
|
(a)
|
The Borrower shall pay accrued interest on each Advance on the last day of each Interest Period relating to it.
|
(b)
|
If an Interest Period is longer than three Months, the Borrower shall pay interest accrued on the Advance on the dates falling at three monthly intervals after the first day of the Interest Period.
|
(a)
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 200 basis points higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 (Default interest) shall be immediately payable by the Obligor on demand by the Facility Agent.
|
|
(b)
|
If an Unpaid Sum consists of all or part of an Advance which became due on a day which was not the last day of an Interest Period relating to it:
|
|
(i)
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Advance; and
|
|
(ii)
|
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 200 basis points higher than the rate which would have applied if that Unpaid Sum had not become due.
|
(c)
|
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
(d)
|
Additionally the rate of interest payable on any amount to which Clause 8.1 (Calculation of interest) continues to apply shall increase by 200 basis points on the date following any notice served by the Facility Agent following an Event of Default and whilst it is continuing, unremedied or unwaived.
|
8.4
|
Fixing of the Eksportkreditt GIEK Facility Loans Margin
|
(a)
|
The Eksportkreditt GIEK Facility Loans Margin is fixed for a period of 60 months from the First Utilisation Date (the "Eksportkreditt GIEK Facility Loans Margin Period").
|
(b)
|
The Borrower may from the date falling 60 Business Days prior to the Interest Payment Date faling nearest to the expiry of the Eksportkreditt GIEK Facility Loans Margin Period (the "Eksportkreditt GIEK Facility Loans Margin Review Date"), but no later than 40 Business Days prior to the Eksportkreditt GIEK Facility Loans Margin Review Date, request that Eksportkreditt gives an offer to the Borrower for a new fixed Eksportkreditt GIEK Facility Loans Margin (the "New Margin Offer") for an additional period to be agreed between Eksportkreditt and the Borrower (the "Eksportkreditt GIEK Facility Loans New Margin Period"). Eksportkreditt shall, within ten Business Days of receipt of such request, give a New Margin Offer to the Borrower. No later than ten Business Days of receipt of the New Margin Offer, the Borrower may accept or reject the New Margin Offer. If the Borrower does not request Eksportkreditt to give a New Margin Offer or does not accept the New Margin Offer in accordance with the conditions of this Clause 8.4, Eksportkreditt's Commitments shall terminate forthwith and any amount outstanding under the Eksportkreditt GIEK Facility Loans together with Eksportkreditt's proportionate part of all other amounts outstanding under the Finance Documents (if any) shall be due and payable by the Borrower on the last day of the relevant Eksportkreditt GIEK Facility Loans Margin Period.
|
(c)
|
In such event, Kexim shall have the option, but not the obligation, by notice to the Borrower, to terminate its Commitments whereby any amount outstanding under the Kexim Facility Loans together with Kexim's proportionate part of all other amounts outstanding under the Finance Documents (if any) shall be due and payable by the Borrower, together with all amounts due and payable pursuant to paragraph (b) above, on the last day of the relevant Eksportkreditt GIEK Facility Loans Margin Period or at such later date as Kexim may agree.
|
8.5
|
Notification of rates of interest
|
9
|
INTEREST PERIODS
|
9.1
|
Selection of Interest Periods
|
(a)
|
The Borrower may select the first Interest Period for an Advance in the Utilisation Request for the relevant Advance. The Borrower may select each subsequent Interest Period in a Selection Notice.
|
(b)
|
Each Selection Notice is irrevocable and must be delivered to the Facility Agent by the Borrower not later than the Specified Time.
|
(c)
|
If the Borrower fails to select an Interest Period in the Utilisation Request or fails to deliver a Selection Notice to the Facility Agent in accordance with paragraphs (a) and (b) above, the relevant Interest Period will be three Months.
|
(d)
|
The Borrower may select an Interest Period of three Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders).
|
(e)
|
An Interest Period for an Advance shall not extend beyond the applicable Termination Date, but shall be shortened so that it ends on the applicable Termination Date.
|
(f)
|
In respect of a Repayment Instalment, an Interest Period for a part of the Advance equal to such Repayment Instalment shall end on the Repayment Date relating to it if such date is before the end of the Interest Period then current.
|
(g)
|
The first Interest Period for an Advance shall start on the First Utilisation Date and each subsequent Interest Period shall start on the last day of the preceding Interest Period.
|
(a)
|
If a Market Disruption Event occurs in relation to any Advance for any Interest Period, then the rate of interest on each Lender's share of the Advance (if any) for the Interest Period shall be the rate per annum which is the sum of:
|
|
(ii)
|
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Advance from whatever source it may reasonably select; and
|
|
(i)
|
at or about noon on the Quotation Day for the relevant Interest Period, the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for dollars for the relevant Interest Period; or
|
|
(ii)
|
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in the Advance concerned exceed 50 per cent. of that Advance) that the cost to it or them of funding its participations in the Advance concerned or part of the Advance concerned from whatever source it may reasonably select be in excess of LIBOR.
|
(a)
|
If a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(b)
|
Any substitute or alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders who participate in the relevant Advance and the Borrower, be binding on all Parties to the Finance Documents.
|
|
10.4
|
Break Costs
|
(a)
|
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of an Advance or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for the Advance or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
|
SECTION 6
|
12.1
|
Definitions
|
(a)
|
In this Agreement:
|
(b)
|
Unless a contrary indication appears, in this Clause 12 (Tax Gross Up and Indemnities) reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
(c)
|
This Clause 12 (Tax gross up and indemnities) shall not apply to any Hedging Agreement.
|
(a)
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b)
|
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c)
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d)
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(e)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
(a)
|
The Borrower shall (within three Business Days of demand by the Facility Agent) pay to a
|
|
(A)
|
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
|
(B)
|
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
|
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
|
(c)
|
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 (Tax indemnity), notify the Facility Agent.
|
(a)
|
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
|
(i)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
|
(ii)
|
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 12.6 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
|
(e)
|
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
(a)
|
Subject to Clause 13.3 (Exceptions), the Borrower shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:
|
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
(b)
|
In this Agreement, "Increased Costs" means:
|
|
(i)
|
a reduction in the rate of return from any Facility or on a Finance Party's (or
|
its
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
(a)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(b)
|
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
(c)
|
compensated for by the payment of the Mandatory Cost; or
|
(d)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
|
(e)
|
incurred by a Hedge Counterparty in its capacity as such.
|
(a)
|
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
(c)
|
This Clause 14.1 does not apply to any sum due under a Hedging Agreement
|
(a)
|
The Borrower shall (or shall procure that an Obligor will), within three Business Days of
|
|
(i)
|
the occurrence of any Event of Default;
|
|
(ii)
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 33 (Sharing Among the Finance Parties);
|
|
(iii)
|
funding, or making arrangements to fund, its participation in an Advance requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
|
(iv)
|
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
(b)
|
The Borrower shall (or shall procure that an Obligor will) promptly indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 (Other indemnities) an "Indemnified Person"), against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Security constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, a Drillship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.
|
(c)
|
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:
|
|
(i)
|
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or
|
|
(ii)
|
in connection with any Environmental Claim.
|
(d)
|
Any Affiliate or any officer or employee of a Finance Party or of any of its Affiliates may rely on this Clause 14.2 (Other indemnities) and the provisions of the Third Parties Act.
|
(e)
|
If, in respect of an Advance, the Lenders pre-position funds with the Builder's bank at the request of the Borrower, the Borrower and each other Obligor:
|
|
(i)
|
agree to pay interest on the amount of such funds at the rate described in Clause 8.1 (Calculation of Interest) applicable to the first Interest Period for the period during which funds have been pre-positioned and so that interest shall be paid together with the first payment of interest in respect of the Advance at the Utilisation Date in respect of it or, if such Utilisation Date does not occur, within three Business Days of demand by the Facility Agent; and
|
|
(ii)
|
shall, without duplication, indemnify each Finance Party against any losses it may
|
(a)
|
investigating any event which it reasonably believes is a Default; or
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
(a)
|
The Borrower shall (or shall procure that an Obligor will) promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any Secured Party:
|
|
(A)
|
the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security;
|
|
(B)
|
the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
|
(C)
|
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; and
|
|
(D)
|
any
|
action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security,
|
|
(ii)
|
which otherwise relates to any of the Security Property or the performance of the terms of this Agreement or the other Finance Documents (otherwise than as a result of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
|
(b)
|
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.4 (Indemnity to the Security Agent) and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all monies payable to it.
|
(a)
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities), Clause 13 (Increased Costs) or paragraph 3 of Schedule 4 (Mandatory Cost Formulae) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
(c)
|
an Obligor requests, and the Security Agent agrees to, the release of any part of the Charged Property from the Transaction Security,
|
(a)
|
guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;
|
(b)
|
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand by the Facility Agent pay that amount as if it were the principal obligor; and
|
(c)
|
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand by the Facility Agent against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by each Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 (Guarantee and Indemnity) if the amount claimed had been recoverable on the basis of a guarantee.
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, take up or enforce, any rights against, or security over assets
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e)
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g)
|
any insolvency or similar proceedings.
|
(a)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and a Guarantor shall not be entitled to the benefit of the same; and
|
(b)
|
hold in an interest-bearing suspense account any moneys received from a Guarantor or on account of a Guarantor's liability under this Clause 17 (Guarantee and Indemnity).
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents;
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Secured Parties under the Finance Documents or of any other guarantee or
|
(a)
|
It is a company, duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(b)
|
It and each of its Subsidiaries (if any) has the power to own its assets and carry on its business as it is being conducted.
|
(a)
|
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery and, where applicable, registration create the Security it purports to create over any assets to which such Security, by its terms, relates, and such Security will, when created or intended to be created, be valid and effective.
|
(b)
|
No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it.
|
(c)
|
The Transaction Security granted by it to the Security Agent or any other Secured Party has or will when created or intended to be created have the first ranking priority it is expressed to have in the Finance Documents and is not subject to any prior ranking or pari passu ranking security.
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
the constitutional documents of any member of the Group; or
|
(c)
|
any agreement or instrument binding upon it or any member of the Group or any member of the Group's assets or constitute a default or termination event (however described) under any such agreement or instrument.
|
(a)
|
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise:
|
|
(i)
|
in the case of each Drillship Owner, its execution of the Shipbuilding Contract to which it is a party, the purchase of and payment for the Drillship under that Shipbuilding Contract and its registration of the Drillship under the Approved Flag; and
|
|
(ii)
|
its entry into, performance and delivery of, each Finance Document to which it is a party and, in the case of each Drillship Owner, the Shipbuilding Contract to which it is a party, and the transactions contemplated by those Finance Documents and that Shipbuilding Contract.
|
(b)
|
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
|
(a)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party and, in the case of each Drillship Owner, the Shipbuilding Contract to which it is a party; and
|
(b)
|
to make the Finance Documents to which it is a party and, in the case of each Drillship Owner, the Shipbuilding Contract to which it is a party, admissible in evidence in its Relevant Jurisdictions,
|
(a)
|
The choice of governing law of each Finance Documents to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b)
|
Any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.
|
(a)
|
in case of each Drillship Owner, the registration of each Mortgage at the Marshall Island ship registry which will be made at the relevant Delivery Date;
|
(b)
|
registration (where required) of the Transaction Security granted under Dutch law with the relevant Dutch tax authorities; and
|
(c)
|
if applicable, any other registration required by the legal advisers to the Finance Parties, which will be made and paid promptly after the date of the relevant Finance Documents.
|
(a)
|
It is not and no other member of the Group is materially overdue in the filing of any Tax returns and it is not (and no other member of the Group is) overdue in the payment of any amount in respect of Tax.
|
(b)
|
No claims or investigations are being, or are reasonably likely to be, made or conducted
|
|
(a)
|
No Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
(b)
|
No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries (if any) or to which its (or any of its Subsidiaries') assets are subject.
|
(a)
|
Any factual information provided by any member of the Group for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b)
|
The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
Nothing has occurred or been omitted from any such information and no information has been given or withheld that results in the information being untrue or misleading in any material respect.
|
(a)
|
The Original Financial Statements were prepared in accordance with the applicable Accounting Principles consistently applied.
|
(b)
|
The Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Parent) during the relevant financial year.
|
(c)
|
There has been no material adverse change in the assets, business or consolidated financial condition of the Group since 31 December 2011.
|
(a)
|
Each Shipbuilding Contract and any Satisfactory Drilling Contract entered into constitutes legal, valid, binding and enforceable obligations of the Builder, the relevant Client, the relevant Intra-Group Charterer and the relevant Drillship Owner respectively, as the case may be.
|
(b)
|
The copies of the Shipbuilding Contracts and any Satisfactory Drilling Contracts delivered to the Facility Agent before the date of this Agreement, or in the case of Satisfactory Drilling Contracts at any subsequent date, are true and complete copies.
|
(c)
|
No amendments or additions to any of the Shipbuilding Contracts or any Satisfactory Drilling Contracts have been agreed nor has (i) any Drillship Owner or the Builder waived any of their respective rights under any Shipbuilding Contract or (ii) any Drillship Owner or any IntraGroup Charterer or any Client waived any of their respective rights under any Satisfactory Drilling Contract.
|
18.18
|
No rebates etc.
|
18.19
|
No breach of laws
|
18.20
|
Compliance with Environmental Laws
|
18.21
|
No Environmental Claim
|
18.22
|
No Environmental Incident
|
18.23
|
ISM and ISPS Code compliance
|
18.24
|
Financial Indebtedness
|
18.25
|
Overseas companies
|
18.26
|
Centre of main interests and establishments
|
18.27
|
Place of business
|
18.28
|
No employee or pension arrangements
|
18.29
|
Ownership
|
(a)
|
The Parent owns all of the shares and the ownership interests in the Borrower as described in Schedule 12 (Corporate Structure).
|
(b)
|
The Borrower owns (directly or indirectly) all of the shares and the ownership interests in each of its Subsidiaries including the Drillship Owners as described in Schedule 12 (Corporate Structure).
|
(c)
|
None of the shares in any of the companies within the Restricted Group are subject to any option to purchase, pre-emption rights or similar rights.
|
18.30
|
Good title to assets
|
18.31
|
The Drillships
|
(a)
|
in the absolute ownership of the relevant Drillship Owner, free and clear of all encumbrances (other than any Permitted Security), and the relevant Drillship Owner is the sole, legal and beneficial owner of that Drillship;
|
(b)
|
registered in the name of the relevant Drillship Owner under the Approved Flag;
|
(c)
|
operationally seaworthy in every way and fit for service; and
|
(d)
|
classed with the Approved Classification with the Approved Classification Society and is free of all overdue requirements and recommendations.
|
18.32
|
No money laundering
|
18.33
|
Corrupt practices
|
18.34
|
Sanctions
|
(a)
|
No Obligor:
|
|
(ii)
|
is owned or controlled by or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person; and
|
(b)
|
No proceeds of any Advance or the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person nor shall they be otherwise directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
18.35
|
No immunity
|
18.36
|
Insolvency
|
(a)
|
No corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 26.9 (Insolvency proceedings) has been taken or, to the knowledge of the Parent, threatened in relation to a member of the Group.
|
(b)
|
No creditors' process described in Clause 26.10 (Creditors' process), has been taken or threatened in relation to any Obligor.
|
(c)
|
None of the circumstances described in Clause 26.8 (Insolvency) applies to any Obligor.
|
(d)
|
Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Finance Documents.
|
18.37
|
GIEK Conditions
|
18.38
|
Repetition
|
19
|
INFORMATION UNDERTAKINGS
|
19.1
|
General
|
19.2
|
Financial statements
|
(a)
|
as soon as the same become available, but in any event within 120 days after the end of each financial year:
|
|
(i)
|
the Group's audited consolidated financial statements (to include a profit and loss account and balance sheet);
|
|
(ii)
|
the Borrower's unaudited consolidated financial statements (to include a profit and loss account and balance sheet); and
|
(b)
|
as soon as the same become available, but in any event within 60 days after each Quarter Date in each financial year:
|
|
(i)
|
the Group's unaudited consolidated financial statements for that financial quarter (to include a profit and loss account and balance sheet); and
|
|
(ii)
|
the Borrower's unaudited consolidated financial statements for that financial quarter (to include a profit and loss account and balance sheet).
|
(c)
|
prior to each financial year, detailed five year projected consolidated financial statements (to include cash flow projections) of each of the Group and the Borrower in a format approved by the Facility Agent (acting reasonably).
|
19.3
|
Compliance Certificate
|
(a)
|
The Borrower shall (or shall procure that the Parent shall) supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a)(i) and (b)(i) of Clause 19.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants), Clause 24.2 (Minimum Required Security Cover) and, if relevant, the Future Excess Cash Flow as set out in Clause 20.1 (Minimum Cash and Cash Equivalents) as at the date as at which those financial statements were drawn up.
|
(b)
|
Each Compliance Certificate shall be signed by any authorized signatory of the Parent.
|
19.4
|
Requirements as to financial statements
|
(a)
|
a description of any change necessary for those financial statements to reflect the applicable Accounting Principles, accounting practices and reference periods upon which the Original Financial Statements were prepared; and
|
(b)
|
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
|
19.5
|
Information: miscellaneous
|
(a)
|
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
(b)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings (including proceedings relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any member of the Group;
|
(c)
|
promptly, such further information and/or documents regarding:
|
(d)
|
promptly, such further information and/or documents as any Finance Party (through the Facility Agent) may reasonably request so as to enable such Finance Party to comply with any laws applicable to it (including, without limitation, compliance with FATCA).
|
19.6
|
Notification of default
|
(a)
|
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b)
|
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by any authorized signatory of the Borrower certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.7
|
"Know your customer" checks
|
(a)
|
If:
|
|
(i)
|
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;
|
|
(iii)
|
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,
|
(b)
|
Each Lender shall promptly upon the request of a Servicing Bank supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Servicing Bank (for itself) in order for that Servicing Bank to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20
|
FINANCIAL COVENANTS
|
20.1
|
Minimum Cash and Cash Equivalents
|
(a)
|
in the case of the Group will not at any time fall below USD 100,000,000 (including any Cash and Cash Equivalents of the Borrower); and
|
(b)
|
in the case of the Borrower (on a consolidated basis) will not at any time fall below:
|
(c)
|
Not withstanding sub-paragraph (b) above, the higher of (i) and (ii) below shall apply.
|
|
(i)
|
during any period starting 12 Months prior to the expiry of a Satisfactory Drilling Contract (each an "Expiring Contract") for any one or more of the Drillships, the aggregate Cash and Cash Equivalents of the Borrower shall be increased (but not reduced below USD 25,000,000 per Drillship) so that it is at least equal to the aggregate amount payable under the next six Repayment Instalments under each of the Facilities less the Future Excess Cash Flow; and
|
|
(ii)
|
during any period starting on the expiry date of the Expiring Contract for any one or more of the Drillships, if the Group has a total Contract Backlog of less than USD 500,000,000 the aggregate Cash and Cash Equivalents of the Borrower shall be increased (but not reduced below USD 25,000,000 per Drillship) so that it is at least equal to an amount of USD 83,000,000 for each Drillship remaining financed by the Facilities less the Future Excess Cash Flow.
|
|
(ii)
|
perform, in the case of each Drillship Owner, its obligations under the Shipbuilding Contract and any Satisfactory Drilling Contract to which it is a party;
|
|
(iii)
|
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant Jurisdiction or in the state of the Approved Flag at any time of the Drillships or any Finance Document and any Shipbuilding Contract to which it is a party; and
|
(c)
|
to the extent such Obligor is incorporated in the Netherlands and is represented by an attorney in connection with the signing and/or execution of any Finance Document, together with the other parties to the relevant Finance Document, acknowledge and accept that the existence and extent of the attorney's authority and the effects of the attorney's exercise or purported exercise of his or her authority shall be governed by the laws of the Netherlands.
|
(c)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law.
|
|
21.6
|
Each of the Obligors shall promptly upon becoming aware of the same, inform the Facility Agent in writing of:
|
(a)
|
any Environmental Claim against any member of the Group which is current, pending or threatened; and
|
(b)
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group.
|
(a)
|
Each of the Obligors shall and the Parent shall ensure that each other member of the Group will pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:
|
|
(ii)
|
adequate reserves are maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Facility Agent under Clause 19.2 (Financial statements); and
|
|
(iii)
|
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.
|
(b)
|
None of the Obligors may and, to the extent (in the opinion of the Facility Agent or the Majority Lenders) it has or reasonably could expect to have a Material Adverse Effect, no other member of the Group may change its residence for Tax purposes.
|
(a)
|
The Borrower shall own (directly or indirectly) 100 per cent. of all the shares and the ownership interests in each of its Subsidiaries including the Drillship Owners as described in Schedule 12 (Corporate Structure).
|
(b)
|
The Parent shall own 100 per cent. of all the shares and the ownership interests in the Borrower as described in Schedule 12 (Corporate Structure).
|
(c)
|
Each Obligor shall procure that there shall be no change in the corporate structure of the Restricted Group described in Schedule 12 (Corporate Structure) without the prior written consent of all the Lenders (not to be unreasonably withheld).
|
21.11
|
New Guarantors
|
(a)
|
Each Obligor shall procure that each Intra-Group Charterer shall be a company within the Restrictive Group.
|
(b)
|
Each Obligor shall procure that any Intra-Group Charterer not already party to this Agreement (other than a company within the Restrictive Group being a counterparty to a Services Contract only) shall accede to this Agreement as an Additional Guarantor by signing an accession letter substantially in the form of Schedule 8 (Form of Accession Letter) hereto and/or taking such other step as the Facility Agent may reasonably require to provide its Guarantee and any such other Security as contemplated under this Agreement, and Shares Security shall be granted over the shares in that Intra-Group Charterer.
|
21.12
|
Title
|
(a)
|
Each Drillship Owner shall hold the title to, and own the entire beneficial interest in, the relevant Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause 21.16 (Negative pledge).
|
(b)
|
Each Obligor shall procure that each Drillship Owner and/or Intra-Group Charterer (as the case may be) shall hold the title to, and own the entire beneficial interest in, the Earnings payable to each such party and its rights in the Insurances related to the relevant Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause 21.16 (Negative pledge).
|
21.13
|
Employment of the Drillships
|
(a)
|
All Charters for the Drillships shall be made on market terms and otherwise on arm's length terms.
|
(b)
|
No novation or assignment of a Charter shall be permitted, save for
|
|
(i)
|
novations or assignments in favour of the Secured Parties under the Finance Documents; or
|
|
(ii)
|
novations or assignments in the ordinary course of business between the Drillship Owners and/or any other member of the Restricted Group (subject to Clause 21.11 (New Guarantors)) as the case may be; or
|
21.14
|
Change of business
|
(a)
|
The Parent shall procure that no substantial change is made to the general nature of the business of the Group from that carried on at the date of this Agreement without the prior written consent of all the Lenders.
|
(b)
|
The companies within the Restricted Group (other than the Drillship Owners) shall not engage in any business other than the ownership (direct or indirect, as the case may be) of the Drillship Owners or (if relevant) the operation of a Drillship as an Intra-Group Charterer.
|
(c)
|
No Drillship Owner shall engage in any business other than the ownership and operation of the Drillship owned by it.
|
21.15
|
Merger
|
21.16
|
Negative pledge
|
(a)
|
None of the companies within the Restricted Group will create or permit to subsist any Security over any of its assets.
|
(b)
|
None of the companies within the Restricted Group will:
|
|
(i)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
|
|
(iii)
|
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
(c)
|
The Parent shall not and shall cause not to create or permit to subsist any Security over the shares of the Obligors including the Borrower but excluding the Parent.
|
(d)
|
Paragraphs (a), (b) and (c) above do not apply to any Permitted Security.
|
21.17
|
Disposals
|
(a)
|
None of the companies within the Restricted Group shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any Drillship, the Earnings or the Insurances or other asset being the subject of Security pursuant to the Finance Documents or the whole or a substantial part of its assets.
|
(b)
|
Paragraph (a) above does not apply to:
|
|
(i)
|
any sale, lease, transfer or other disposal made on market value and arm's length terms and in compliance with Clause 7 (Prepayment and cancellation) of this Agreement; or
|
21.18
|
Financial Indebtedness
|
(a)
|
None of the companies within the Restricted Group shall incur any Financial Indebtedness except pursuant to the Finance Documents and any intra-group indebtedness which is subordinated in accordance with Clause 21.19 (Subordination).
|
(b)
|
The Parent shall be permitted to incur, create and permit to subsist Financial Indebtedness, subject to no Default or Event of Default existing or resulting thereof.
|
21.19
|
Subordination
|
(a)
|
Each Obligor shall procure that any current or future intra-group claims (including any shareholder loans) owed by any Obligor to an Obligor or another company within the Group and all sums owed by any Obligor to the Manager are unsecured and fully subordinated from the time of a Default, in terms of payment and priority, to the rights of the Finance Parties under the Finance Documents on terms acceptable to the Facility Agent.
|
(b)
|
Additionally each Obligor shall procure that no transfer, novation or assignment of any such claim (whether for security or otherwise) shall take place at any time to any party outside the Group or, following the occurrence of a Default, to any other member of the Group.
|
21.20
|
Investments
|
21.21
|
Share capital
|
(a)
|
None of the companies within the Restricted Group shall:
|
|
(i)
|
purchase, cancel or redeem any of its share capital;
|
|
(ii)
|
increase or reduce its authorised share capital;
|
|
(iii)
|
issue any further shares except to its shareholder and provided such new shares are made subject to the terms of the Shares Security immediately upon the issue thereof in a manner satisfactory to the Security Agent and the terms of the Shares Security are complied with; or
|
|
(iv)
|
appoint any further director, officer or secretary (unless the provisions of the Shares Security are complied with).
|
21.22
|
Dividends
|
(a)
|
The Parent may only:
|
|
(i)
|
make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital or make any other distributions to its shareholders; and/or
|
|
(ii)
|
buy-back its own common stock,
|
|
(each a "Payment"),
|
|
(i)
|
immediately following such Payment the aggregate of (a) Cash and Cash Equivalents and (b) the balance of the Debt Service Reserve Accounts relating to the OCR Drillships, shall be no less than USD 200,000,000 (the "Minimum Holding"); and
|
|
(ii)
|
the Facility Agent is provided with evidence by way of a Forecast that the Minimum Holding will be maintained for a period of at least 12 Months from the date of such Payment and has approved such Forecast (acting reasonably) prior to any Payment being authorised or made.
|
(b)
|
In this Clause 21.22 (Dividends), "Forecast" shall mean a cash flow forecast prepared by the Parent and taking into account, inter alia:
|
|
(i)
|
all committed payments in relation to capital expenditures;
|
|
(ii)
|
scheduled repayments and interest payments of all debt within the Group; and
|
|
(iii)
|
scheduled debt drawdowns under committed loan facilities.
|
(b)
|
cause any obligation of an Obligor under the Finance Documents to cease to be legal, valid, binding or enforceable;
|
(c)
|
cause any Finance Document to cease to be in full force and effect;
|
(d)
|
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
|
(e)
|
imperil or jeopardise the Transaction Security.
|
(a)
|
Each Obligor shall promptly, and in any event within the time period specified by the Security Agent do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Agent may specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
|
(i)
|
to create, perfect, vest in favour of the Security Agent or protect the priority of the Security or any right or any kind created or intended to be created under or evidenced by the Finance Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent, any Receiver or the Secured Parties provided by or pursuant to the Finance Documents or by law;
|
|
(ii)
|
to confer on the Security Agent or confer on the Secured Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
|
(iii)
|
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Transaction Security or to exercise any power specified in any Finance Document in respect of which the Security has become enforceable; and/or
|
|
(iv)
|
to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property.
|
(b)
|
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Secured Parties by or pursuant to the Finance Documents.
|
(c)
|
At the same time as an Obligor delivers to the Security Agent any document executed under this Clause 21.26 (Further assurance), that Obligor shall deliver to the Security Agent reasonable evidence that that Obligor's execution of such document has been duly authorised by it.
|
(a)
|
The undertakings in this Clause 22 (Insurance Undertakings) remain in force on and from the Delivery Date of each Drillship and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
|
(b)
|
At any time where there is an Intra-Group Charterer within the Charter arrangements for any Drillship, the relevant Drillship Owner shall be entitled to procure the performance of the undertakings in this Clause 22 (Insurance Undertakings) through the Intra-Group Charterer.
|
(a)
|
fire and usual marine risks (including hull and machinery and excess risks);
|
(b)
|
hull interest and/or freight interest;
|
(c)
|
war risks (including blocking and trapping, acts of terrorism and piracy);
|
(d)
|
protection and indemnity risks;
|
(e)
|
risk of loss of Earnings; and
|
(f)
|
such other insurances as the Lenders may reasonably require.
|
(a)
|
Each Drillship Owner shall effect such insurances
|
|
|
(i)
|
in dollars;
|
|
(ii)
|
in the case of fire and usual marine risks and war risks, in an amount equal to at least 80 per cent. of the Insurance Value of the Drillship owned by it, while the remaining 20 per cent. may be taken out as hull interest and/ or freight interest insurance;
|
|
(iii)
|
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 and in the international marine insurance market;
|
|
(iv)
|
in the case of protection and indemnity risks, in respect of the full tonnage of the Drillship owned by it;
|
|
(v)
|
in the case of risk of loss of Earnings insurance, in an amount confirmed by the report from the insurance broker obtained in accordance with Clause 22.14(b) as being appropriate and adequate;
|
|
(vi)
|
in each of the above cases on terms approved by the Facility Agent (acting on the authorisation of the Majority Lenders) and through such brokers, insurers, associations and clubs as the Facility Agent (acting on the authorisation of the Majority Lenders) from time to time may approve as appropriate for an internationally reputable major drilling contractor.
|
(b)
|
For the purpose of this Clause 22 (Insurance Undertakings) the "Insurance Value" of a Drillship means at all times:
|
|
(i)
|
an amount such that the aggregate of the Insurance Values of all Drillships in aggregate, is at all times equal to or higher than the greater of:
|
|
(A)
|
120 per cent. of the Loan; and
|
|
(B)
|
the aggregate of the Market Values of the Drillships;
|
|
(ii)
|
an amount which is at all times equal to or higher than the Market Value of the relevant Drillship.
|
(a)
|
subject always to paragraph (b), name that Drillship Owner and any relevant Intra-Group Charterer as the main co assured unless the interest of every other co assured is limited:
|
|
(A)
|
to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and
|
|
(B)
|
to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and
|
|
(ii)
|
in respect of any obligatory insurances for protection and indemnity risks, to any recoveries it is entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against it;
|
(b)
|
whenever the Facility Agent (acting on the authorisation of all Lenders) requires (acting reasonably), name (or be amended to name) the Security Agent as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(c)
|
name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify;
|
(d)
|
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set off, counterclaim or deductions or condition whatsoever;
|
(e)
|
provide that the obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent or any other Finance Party; and
|
(f)
|
provide that the Security Agent may make proof of loss if that Drillship Owner or any relevant Intra-Group Charterer fails to do so.
|
(a)
|
at least 14 days before the expiry of any obligatory insurance effected by it, renew that obligatory insurance; and
|
(b)
|
procure that the brokers and/or the war risks and protection and indemnity associations (approved in accordance with 22.3(a)(vi)) with which such a renewal is effected shall promptly after the renewal notify the Facility Agent in writing of the terms and conditions of the renewal.
|
(a)
|
pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and
|
(b)
|
a letter or letters of undertaking in a form required by the Facility Agent and including undertakings by the brokers that:
|
|
(i)
|
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 22.4 (Further protections for the Finance Parties);
|
|
(ii)
|
they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause;
|
|
(iii)
|
they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances;
|
|
(iv)
|
they will, if they have not received notice of renewal instructions from the Drillship Owner concerned or its agents, notify the Security Agent not less than 14 days before the expiry of the obligatory insurances;
|
|
(v)
|
if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions;
|
|
(vi)
|
they will not set off against any sum recoverable in respect of a claim relating to a Drillship under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Drillship 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
|
|
(vii)
|
they will arrange for a separate policy to be issued in respect of a Drillship forthwith upon being so requested by the Facility Agent.
|
(a)
|
a copy of the certificate of entry for that Drillship;
|
(b)
|
a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders ; and
|
(c)
|
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 Drillship if trading in the United States or any other relevant jurisdiction.
|
(a)
|
No Drillship Owner 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 effected by it invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance effected by it repayable in whole or in part.
|
(b)
|
Without limiting paragraph (a) above, each Drillship Owner shall:
|
|
(i)
|
take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances effected by it, and (without limiting the obligation contained in paragraph (b)(iii) of Clause 22.6 (Copies of policies; letters of undertaking)) ensure that the obligatory insurances effected by it are not made subject to any exclusions or qualifications to which the Facility Agent has not given its prior approval;
|
|
(ii)
|
not make any changes relating to the Approved Classification or the Approved Classification Society or Manager or operator of the Drillship owned by it, without obtaining the underwriters' prior consent;
|
|
(iii)
|
make (and promptly supply copies to the Facility Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Drillship 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
|
|
(iv)
|
not employ the Drillship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances effected by it, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
(c)
|
The Facility Agent may, at any time and for the account of the Borrower, obtain an insurance report from an independent marine insurance broker.
|
(a)
|
not settle, compromise or abandon any claim under any obligatory insurance effected by it for Total Loss or for a Major Casualty; and
|
(b)
|
do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.
|
(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 22.15 (Mortgagee's interest and additional perils (pollution) insurances) or dealing with or considering any matters relating to any such insurances,
|
(a)
|
The Security Agent shall effect, maintain and renew a mortgagee's interest marine insurance and a mortgagee's interest additional perils (pollution) insurance, covering not less than 120 per cent. of the Loan and on such terms, through such insurers and generally in such manner as the Security Agent acting on the instructions of the Majority Lenders may from time to time consider appropriate.
|
(b)
|
The Borrower shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any insurance referred to in paragraph (a) above or dealing with, or considering, any matter arising out of any such insurance.
|
(a)
|
keep the Drillship owned by it registered in its name under the Approved Flag from time to time at its port of registration;
|
|
(i)
|
the prior consent of all Lenders, and:
|
|
(ii)
|
the Drillship remaining subject to Security securing the Secured Liabilities created by a first priority or preferred ship mortgage on the Drillship and, if appropriate, a first priority deed of covenant collateral to that mortgage (or equivalent first priority Security) on substantially the same terms as the Mortgage and on such other terms and in such other form as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require; and
|
|
(iii)
|
the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of all Lenders, shall approve or require.
|
(b)
|
so as to maintain the Approved Classification free of overdue recommendations and conditions.
|
|
(a)
|
Subject to paragraph (b) below, no Drillship Owner shall remove any material part of the Drillship owned by it, or any item of equipment installed on the Drillship owned by it unless the part or item so removed is forthwith replaced by a suitable part or item which:
|
|
(i)
|
is in the same condition as or better condition than the part or item removed;
|
|
(ii)
|
is free from any Security in favour of any person other than the Security Agent; and
|
|
(iii)
|
becomes, on installation on the relevant Drillship, the property of the relevant Drillship Owner and subject to the security constituted by the Mortgage.
|
(b)
|
A Drillship Owner may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Drillship owned by it.
|
|
(i)
|
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Drillship owned by it, its Earnings or its Insurances;
|
|
(ii)
|
all taxes, dues and other amounts charged in respect of the Drillship owned by it, its Earnings or its Insurances; and
|
|
(iii)
|
all other outgoings whatsoever in respect of the Drillship owned by it, its Earnings or its Insurances.
|
(b)
|
Each Drillship Owner shall forthwith upon receiving notice of the arrest of the Drillship owned by it or of its detention in exercise or purported exercise of any lien or claim procure its release by providing bail or otherwise as the circumstances may require.
|
|
(ii)
|
relating to the Drillship owned by it, its ownership, employment, operation, management and registration,
|
(c)
|
without limiting paragraph (a) above, not employ the Drillship owned by it nor allow its employment, operation or management in any manner contrary to any law or regulation including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions.
|
(a)
|
procure the Drillship owned by it and the company responsible for the Drillship's compliance with the ISPS Code comply with the ISPS Code; and
|
(b)
|
maintain an ISSC for the Drillship owned by it; and
|
(c)
|
notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the relevant ISSC.
|
(a)
|
consented to in advance and in writing by the underwriters of the relevant Drillship's war risk insurances and fully covered by those insurances; or
|
(b)
|
(to the extent not covered by those insurances) covered by additional insurance taken out by the relevant Drillship Owner or Intra-Group Charterer (as the case may be) at their expense, which additional insurance shall be deemed to be part of the insurances subject to the Transaction Security,
|
|
(i)
|
the war risk insurers have been duly notified and have agreed to the relevant Drillship entering the specified war zone; and
|
(a)
|
the Drillship owned by it, its employment, position and engagements;
|
(b)
|
any Earnings and payments and amounts due to any master and crew;
|
(c)
|
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Drillship owned by it and any payments made by it in respect of the Drillship owned by it;
|
(d)
|
any towages and salvages; and
|
(e)
|
its compliance, the Manager's compliance and the compliance of the Drillship owned by it with the ISM Code and the ISPS Code,
|
(a)
|
any casualty to the Drillship owned by it which is or is likely to be or to become a Major Casualty;
|
(b)
|
any occurrence as a result of which the Drillship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(d)
|
any requirement or recommendation made in relation to the Drillship owned by it by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(e)
|
any arrest or detention of the Drillship owned by it, any exercise or purported exercise of any lien on that Drillship or its Earnings or any requisition of that Drillship for hire;
|
(g)
|
any Environmental Claim made against that Drillship Owner, the Borrower or in connection with the Drillship owned by it, or any Environmental Incident;
|
(j)
|
any claim for breach of the ISM Code or the ISPS Code being made against a Drillship Owner, the Manager or otherwise in connection with the Drillship owned by it; or
|
(k)
|
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,
|
(a)
|
let the Drillship owned by it on demise charter for any period other than any Bareboat Charter;
|
(d)
|
de activate or lay up on a "cold stack" basis the Drillship owned by it or otherwise on a basis which would prevent that Drillship from being ready to re-commence employment within a one month period at any time; or
|
(e)
|
put the Drillship owned by it into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed USD 15,000,000 (or the equivalent in any other currency) unless that person has first given to the Security Agent and in terms satisfactory to it a written undertaking not to exercise any lien on that Drillship or its Earnings for the cost of such work or for any other reason.
|
(a)
|
The Market Value of each Drillship shall be determined at the Delivery Date of that Drillship and semi-annually thereafter, and at such other times as the Facility Agent may request.
|
(b)
|
The valuations for the purpose of determining the Market Value of each Drillship shall be obtained at the cost of the Borrower.
|
(c)
|
The Borrower shall promptly provide the Facility Agent and the Approved Shipbrokers acting under this Clause 24 (Security Cover) with any information which the Facility Agent or the Approved Shipbrokers may request for the purposes of the valuations.
|
(a)
|
the aggregate Market Value of all Drillships delivered at the relevant time; plus
|
(b)
|
the net resalable value of additional Security previously provided under this Clause 24 (Security Cover),
|
(a)
|
provide, or ensure that a third party has provided, additional security which, in the opinion of the Facility Agent acting on the instructions of all Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Facility Agent may approve or require; or
|
(b)
|
prepay such part of the Loan required in order to eliminate the shortfall.
|
(a)
|
Each Obligor shall ensure that, subject only to the provisions of the General Assignments and the Account Securities (as applicable), all Earnings received by the Borrower, the Drillship Owners and any Intra-Group Charterer are paid in to its Earnings Account.
|
(b)
|
The Security Agent may block the Earnings Accounts upon the occurrence of a Default.
|
(a)
|
comply with any requirement of the Facility Agent as to the location or relocation of the Earnings Accounts (or any of them); and
|
(b)
|
execute any documents which the Facility Agent specifies to create or maintain in favour of the Security Agent Security over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts.
|
26.2
|
Non-payment
|
(a)
|
its failure to pay is caused by an administrative or technical error in the banking system, appropriate evidence of which is provided to the Facility Agent; and
|
(b)
|
payment is made within three Business Days of its due date.
|
(a)
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 26.2 (Non-payment) and Clause 26.3 (Specific obligations).
|
(b)
|
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 calendar days of the Facility Agent giving notice to the Borrower or (if earlier) the Borrower becoming aware of the failure to comply.
|
(a)
|
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period.
|
(b)
|
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c)
|
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
|
(d)
|
Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e)
|
No Event of Default will occur under this Clause 26.7 (Cross default) if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within
|
(a)
|
An Obligor or any member of the Restricted Group is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b)
|
The value of the assets of an Obligor or any member of the Restricted Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
(a)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor;
|
(b)
|
a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
|
(c)
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Group or any of its assets; or
|
(d)
|
enforcement of any Security over any assets of any member of the Group, or any analogous procedure or step is taken in any jurisdiction.
|
(a)
|
It is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents.
|
(b)
|
Any obligation of any Obligor under the Finance Documents is not or ceases to be legal, valid, binding or enforceable.
|
(c)
|
Any Finance Document ceases to be in full force and effect or any Transaction Security is alleged by a party to it (other than a Finance Party) to be ineffective.
|
(d)
|
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
|
(b)
|
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon it shall become immediately due and payable; and/or
|
(c)
|
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders,
|
|
On and at any time after the occurrence of an Event of Default which is continuing the Security Agent may, and shall if so directed by the Majority Lenders, take any action which, as a result of the Event of Default or any notice served under Clause 26.19 (Acceleration), the Security Agent is entitled to take under any Finance Document or any applicable law or regulation.
|
27
|
RECOURSE REQUIREMENTS AND RIGHTS OF SUBROGATION
|
27.1
|
Payment from GIEK
|
|
Subject to this Clause 28 (Changes to the Lenders), a Lender (the "Existing Lender") may:
|
|
under the Finance Documents to another bank or financial institution (the "New Lender").
|
(a)
|
The consent of the Borrower is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
|
(i)
|
to another Lender or an Affiliate of a Lender;
|
|
(ii)
|
made at a time when a Default is continuing.
|
(b)
|
The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
(c)
|
The consent of the Borrower to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to the Mandatory Cost.
|
|
(i)
|
receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) 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 Secured Parties as it would have been under if it were an Original Lender; and
|
|
(ii)
|
performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
|
(e)
|
A transfer will only be effective if the procedure set out in Clause 28.5 (Procedure for transfer) is complied with.
|
|
(i)
|
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(g)
|
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
|
(ii)
|
the financial condition of any Obligor;
|
|
(iii)
|
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
|
and any representations or warranties implied by law are excluded.
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it:
|
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document or the Transaction Security; and
|
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities throughout the Security Period.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
|
(i)
|
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 28 (Changes to the Lenders); or
|
|
(ii)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
(a)
|
Subject to the conditions set out in 28.2 (Conditions of assignment or transfer), a transfer is effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b)
|
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c)
|
Subject to Clause 28.9 (Pro rata interest settlement), on the Transfer Date:
|
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the "Discharged Rights and Obligations");
|
|
(ii)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
|
(iii)
|
the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Security Agent, the Hedge Counterparties, the Mandated Lead Arrangers and the Existing Lenders shall each be released from further obligations to each other under the Finance Documents; and
|
(a)
|
Subject to the conditions set out in Clause 28.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Facility Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(b)
|
The Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c)
|
Subject to Clause 28.9 (Pro rata interest settlement), on the Transfer Date:
|
|
(i)
|
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
|
(ii)
|
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
|
(iii)
|
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d)
|
Lenders may utilise procedures other than those set out in this Clause 28.6 (Procedure for assignment) to assign their rights under the Finance Documents (but not to obtain a release by that Obligor from the obligations owed to that Obligor by any Lender nor to effect the assumption of equivalent obligations by a New Lender, in each case without the consent of the relevant Obligor or unless in accordance with Clause 28.5 (Procedure for transfer)), provided that they comply with the conditions set out in Clause 28.2 (Conditions of assignment or transfer).
|
(a)
|
any charge, assignment or other Security 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 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 for the Lender as a party to any of the Finance Documents; or
|
|
(ii)
|
require any payments to be made by an Obligor other than or in excess of, 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.
|
(a)
|
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(b)
|
The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
|
(i)
|
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
|
(ii)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 28.9 (Pro rata interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts.
|
|
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
|
(a)
|
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
(a)
|
Subject to paragraph (b) below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party.
|
(b)
|
Without prejudice to Clause 28.7 (Copy of Transfer Certificate r Assignment Agreement to Borrower), paragraph (a) above shall not apply to any Transfer Certificate or to any Assignment Agreement.
|
(c)
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d)
|
If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.
|
(e)
|
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent, the Mandated Lead Arrangers or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
|
(f)
|
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
(a)
|
The Facility Agent shall not have any duties or obligations to any person under the Finance
|
|
The Facility Agent shall not have any liability to any person in respect of its obligations and duties under this Agreement or the other Finance Documents except as expressly set out in Clause 30.5 (Application of receipts), and as excluded or limited by Clauses 30.8 (Majority Lenders' instructions), 30.9 (Responsibility for documentation), 30.10 (Exclusion of liability) and 30.11 (Lenders' indemnity to the Facility Agent).
|
(b)
|
The provisions of paragraph (a) above shall apply even if, notwithstanding and contrary to paragraph (a) above, any provision of this Agreement or any other Finance Document by operation of law has the effect of constituting the Facility Agent as a fiduciary.
|
(c)
|
Nothing in the Finance Documents constitutes the Facility Agent or any of the Mandated Lead Arrangers a trustee of any other person.
|
(d)
|
None of the Facility Agent, the Security Agent nor the Mandated Lead Arrangers shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
|
(i)
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
|
(ii)
|
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.
|
(b)
|
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 26.2 (Non-payment));
|
|
(ii)
|
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
|
|
(iii)
|
any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c)
|
The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
(d)
|
The Facility Agent may act in relation to the Finance Documents through its personnel and agents.
|
(e)
|
The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(f)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arrangers is obliged to do or omit to do anything if it
|
(a)
|
Unless a contrary indication appears in a Finance Document, the Facility Agent shall:
|
|
(i)
|
exercise any right, power, authority or discretion vested in it as Servicing Bank in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as a Servicing Bank); and
|
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
|
(b)
|
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
|
(c)
|
The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
|
(d)
|
In the absence of instructions from the Majority Lenders (or, if appropriate, the Lenders), the Facility Agent shall not be obliged to take any action (or refrain from taking action) (even if it considers acting or not acting to be in the best interests of the Lenders). The Facility Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
|
(e)
|
The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (e) shall not apply to any legal or arbitration proceedings relating to the perfection, preservation or protection of rights under the Transaction Security or Finance Documents creating Transaction Security.
|
|
Neither the Facility Agent nor the Mandated Lead Arrangers:
|
(a)
|
is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, the Mandated Lead Arrangers, an Obligor or any other person given in, or in connection with, any Finance Document;
|
(b)
|
is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into or made or executed in anticipation of, or in connection with, any Finance Document or the Transaction Security; or
|
(c)
|
is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to the provisions of paragraph (e) of Clause 34.10 (Disruption to Payment Systems etc.)), the Facility Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for any action taken by it under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct.
|
(b)
|
No Party other than the Facility Agent may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and each officer, employee or agent of the Facility Agent may rely on this Clause subject to Clause 1.5 (Third party rights)and the provisions of the Third Parties Act.
|
(c)
|
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by it for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Facility Agent or the Mandated Lead Arrangers to carry out any "know your customer" or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent and the Mandated Lead Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or the Mandated Lead Arrangers.
|
(a)
|
The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower.
|
(b)
|
Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Majority Lenders may appoint a successor Facility Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Facility Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Facility Agent may appoint a successor Facility Agent.
|
(d)
|
The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions Facility Agent under the Finance Documents.
|
(e)
|
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
(f)
|
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 30 (The Facility Agent and the Mandated Lead Arrangers) and any other provisions of a Finance Document which are expressed to limit or exclude its liability in acting as Facility Agent. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g)
|
The Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with paragraph (b) above. In this event, the Facility Agent shall resign in accordance with paragraph (b) above.
|
(h)
|
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent.
|
(a)
|
Subject to Clause 28.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
(b)
|
Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost Formulae).
|
(c)
|
Each Lender shall supply the Facility Agent with any information that the Security Agent may reasonably specify (through the Facility Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Lender shall deal with the Security Agent exclusively through the Facility Agent and shall not deal directly with the Security Agent.
|
(d)
|
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 36.5 (Electronic communication)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 36.2 (Addresses) and paragraph (a)(iii) of Clause 36.5 (Electronic communication) and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
30.14
|
Credit appraisal by the Lenders
|
(a)
|
Lenders
|
|
(i)
|
the financial condition, status and nature of each member of the Group;
|
|
(ii)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;
|
|
(iii)
|
whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under, or in connection with, any Finance Document or the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
|
(iv)
|
the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under, or in connection with, any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
|
(v)
|
the right or title of any person in or to or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
|
(i)
|
to inform the Borrower of interest, instalments and other amounts due from the Borrower to Eksportkreditt, and guarantee fees due from the Borrower to GIEK under the Finance Documents and/or Fee Letter(s);
|
|
(ii)
|
to notify Eksportkreditt and GIEK of any non-payment of any principal, interest, fees or other amount payable to Eksportkreditt under this Agreement;
|
|
(iii)
|
to notify Eksportkreditt and GIEK:
|
|
(A)
|
of any failure by the Borrower to deliver the documents required to be delivered under Clause 19.2 (Financial Statements), Clause 19.3 (Compliance Certificate);
|
|
(B)
|
of any non-compliance with Clauses 22.2 (Maintenance of obligatory insurances), 22.5 (Renewal of obligatory insurances), 22.6 (Copies of policies; letters of undertaking) and 22.7 (Copies of certificates of entry);
|
|
(C)
|
in the event any of the insurances required to be maintained under Clause 22.2 (Maintenance of obligatory insurance) reaches its expiry date without relevant evidence of renewal being presented to it as Facility Agent; and
|
|
(iv)
|
to forward to Eksportkreditt the original or a copy of any document which is delivered to it as Facility Agent by or on behalf of the insurers to satisfy the obligations undertaken by the insurers under the letters of undertaking issued by them to the Facility Agent in accordance with the Finance Documents, hereunder any notice of non-renewal of the relevant insurances;
|
|
(v)
|
to forward to Eksportkreditt the original or a copy of any document which is delivered to the Facility Agent for the attention of Eksportkreditt by the Borrower;
|
|
(vi)
|
unless otherwise instructed by the Majority Lenders or all Lenders (as applicable), request the Borrower that any non-compliance contemplated by (ii) or (iii) above be immediately remedied (if capable of remedy); and
|
(b)
|
Notwithstanding Clause 30.10(a) above, and without limiting Clause 30.10(c), the Facility Agent will not be liable to Eksportkreditt for any failure to perform its duties as Facility Agent under this Agreement, unless directly caused by its negligence or wilful misconduct.
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction,
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
(c)
|
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
(a)
|
The Security Agent declares that it shall hold the Security Property on trust for the Secured Parties on the terms contained in this Agreement and shall deal with the Security Property in accordance with this Clause 31 (The Security Agent) and the other provisions of the Finance Documents.
|
(b)
|
Each of the parties to this Agreement agrees that the Security Agent shall have only those duties, obligations and responsibilities expressly specified in this Agreement or in the Finance Documents (and no others shall be implied).
|
(c)
|
The Security Agent shall not have any liability to any person in respect of its duties, obligations and responsibilities under this Agreement or the other Finance Documents except as expressly set out in paragraph (a) of Clause 31.1 (Trust) and as excluded or limited by this Clause 31 (The Security Agent) including in particular Clause 31.6 (Instructions to Security Agent and exercise of discretion), Clause 31.11 (Responsibility for documentation), Clause 31.12 (Exclusion of liability) and Clause 31.14 (Lenders' indemnity to the Security Agent).
|
(a)
|
Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent amounts equal to, and in the currency or currencies of, its Corresponding Debt (the "Parallel Debt").
|
(b)
|
The Parallel Debt of an Obligor:
|
(c)
|
For purposes of this Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent:
|
|
(ii)
|
acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and
|
|
(iii)
|
shall have the independent and separate right to demand payment of each Parallel Debt in its own name (including, without limitation, through any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in any kind of insolvency proceeding).
|
(d)
|
The Parallel Debt of an Obligor shall be:
|
|
(i)
|
decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and
|
|
(ii)
|
increased to the extent that its Corresponding Debt has increased,
|
|
(A)
|
decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and
|
|
(B)
|
increased to the extent that its Parallel Debt has increased,
|
(e)
|
All amounts received or recovered by the Security Agent in connection with this Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)) to the extent permitted by applicable law, shall be applied in accordance with Clause 34.5 (Application of receipts; partial payments).
|
(F)
|
This Clause 31.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document.
|
(a)
|
Except as expressly stated to the contrary in any Finance Document, any moneys which the Security Agent receives or recovers and which are, or are attributable to, Security Property shall be transferred to the Facility Agent for application in accordance with Clause 34.5 (Application of receipts; partial payments).
|
(b)
|
Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate:
|
|
(i)
|
under Clause 14.4 (Indemnity to the Security Agent) to be indemnified out of the Charged Property; and
|
|
(ii)
|
under any Finance Document to credit any moneys received or recovered by it to any suspense account.
|
(a)
|
Before transferring any moneys to the Facility Agent under Clause 31.4 (Application of receipts), the Security Agent may deduct any sum then due and payable under this
|
(b)
|
For the purposes of paragraph (a) above, if the Security Agent has become entitled to require a sum to be paid to it on demand, that sum shall be treated as due and payable, even if no demand has yet been served.
|
(a)
|
Subject to paragraph (d) below, the Security Agent shall act in accordance with any instructions given to it by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as required under this Agreement)) or, if so instructed by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)), refrain from exercising any right, power, authority or discretion vested in it as Security Agent and shall be entitled to assume that:
|
|
(i)
|
any instructions received by it from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as required under this Agreement)) are duly given in accordance with the terms of the Finance Documents; and
|
|
(ii)
|
unless it has received actual notice of revocation, that those instructions or directions have not been revoked.
|
(b)
|
The Security Agent shall be entitled to request instructions, or clarification of any direction, from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as required under this Agreement)) as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Agent may refrain from acting unless and until those instructions or clarification are received by it.
|
(c)
|
Any instructions given to the Security Agent by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as required under this Agreement)) shall override any conflicting instructions given by any other Party.
|
(d)
|
Paragraph (a) above shall not apply:
|
|
(ii)
|
where this Agreement requires the Security Agent to act in a specified manner or to take a specified action; and
|
|
(iii)
|
in respect of any provision which protects the Security Agent's own position in its personal capacity as opposed to its role of Security Agent for the Secured Parties including, without limitation, the provisions set out in Clauses 31.8 (Security Agent's discretions) to Clause 31.25 (Disapplication).
|
(a)
|
The Security Agent may:
|
|
(i)
|
assume (unless it has received actual notice to the contrary from the Facility Agent) that (i) no Default has occurred and no Obligor is in breach of or default under its obligations under any of the Finance Documents and (ii) any right, power, authority or discretion vested by any Finance Document in any person has not been exercised;
|
|
(ii)
|
assume that any notice or request made by the Borrower (other than the Utilisation Request or a Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors;
|
|
(iii)
|
if it receives any instructions or directions to take any action in relation to the Transaction Security, assume that all applicable conditions under the Finance Documents for taking that action have been satisfied;
|
|
(iv)
|
engage, pay for and rely on the advice or services of any legal advisers, accountants, tax advisers, surveyors or other experts (whether obtained by the Security Agent or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or desirable;
|
|
(vi)
|
disclose to any other Party any information it reasonably believes it has received as security agent under this Agreement;
|
|
(vii)
|
rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected to be within the knowledge of a Secured Party or an Obligor, upon a certificate signed by or on behalf of that person; and
|
|
(viii)
|
refrain from acting in accordance with the instructions of any Party (including bringing any legal action or proceeding arising out of or in connection with the Finance Documents) until it has received any indemnification and/or security that it may in its discretion require (whether by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in so acting.
|
(b)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would or might, in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(a)
|
copy to the Facility Agent the contents of any notice or document received by it from any Obligor under any Finance Document;
|
(b)
|
forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party provided that, except where a Finance Document expressly provides otherwise, the Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party; and
|
(c)
|
inform the Facility Agent of the occurrence of any Default or any default by a Debtor in the due performance of or compliance with its obligations under any Finance Document of which the Security Agent has received notice from any other Party.
|
(a)
|
be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by an Obligor of its obligations under any of the Finance Documents;
|
(b)
|
be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account;
|
(c)
|
be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty;
|
(d)
|
have or be deemed to have any relationship of trust or agency with, any Obligor.
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Agent or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents, or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c)
|
any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Finance Documents, the Security Property or otherwise, whether in accordance with an instruction from the Facility Agent or otherwise unless directly caused by its gross negligence or wilful misconduct;
|
(d)
|
the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Finance Documents, the Security Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, the Finance Documents or the Security Property unless, in the case only of any liability to a Finance Party but not to any Obligor, directly caused by its gross negligence or wilful misconduct; or
|
(e)
|
any shortfall which arises on the enforcement or realisation of the Security Property.
|
(a)
|
Without limiting Clause 31.13 (No proceedings), none of the Security Agent, any Receiver or any Delegate will be liable for any action taken by it or not taken by it under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct.
|
(b)
|
The Security Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by it for that purpose.
|
(c)
|
Nothing in this Agreement shall oblige the Security Agent to carry out any "know your customer" or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Security Agent that it is solely responsible for any such checks it is required
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy and enforceability of any Finance Document, the Security Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(c)
|
whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Security Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Security Property;
|
(d)
|
the adequacy, accuracy and/or completeness of any information provided by the Security Agent or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property,
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Finance Documents or the Transaction Security;
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any jurisdiction or to give notice to any person of the execution of any of the Finance Documents or of the Transaction Security;
|
(d)
|
take, or to require any of the Obligors to take, any steps to perfect that Obligor's title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under the laws of any jurisdiction; or
|
(e)
|
require any further assurances in relation to any of the Finance Documents creating the Transaction Security.
|
(a)
|
The Security Agent shall not be under any obligation to insure any of the Charged Property, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Finance Documents. The Security Agent shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance.
|
(b)
|
Where the Security Agent is named on any insurance policy as an insured party (following the consent of all Lenders), it shall not be responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Facility Agent shall have requested it to do so in writing and the Security Agent shall have failed to do so within 14 days after receipt of that request.
|
(a)
|
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Finance Documents creating the Transaction Security; and
|
(b)
|
any Retiring Security Agent shall release, without recourse or warranty, all of its rights under each of the Finance Documents creating the Transaction Security.
|
(a)
|
section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement and the other Finance Documents; and
|
(b)
|
where there are any inconsistencies between (i) the Trustee Acts 1925 and 2000 and (ii) the provisions of this Agreement and any other Finance Document, the provisions of this Agreement and any other Finance Document shall, to the extent allowed by law, prevail and, in the case of any inconsistency with the Trustee Act 2000, such provisions shall constitute a restriction or exclusion for the purposes of the Trustee Act 2000.
|
31.27
|
Full freedom to enter into transactions
|
(a)
|
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting any Obligor or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security agent for, and/or participating in, other facilities to such Obligor or any person who is party to, or referred to in, a Finance Document);
|
(b)
|
to deal in and enter into and arrange transactions relating to:
|
(c)
|
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
31.28
|
Resignation of the Security Agent
|
(a)
|
The Security Agent may resign and appoint one of its affiliates as successor by giving notice to the Borrower and each Secured Party.
|
(b)
|
Alternatively the Security Agent may resign by giving notice to the other Parties in which case the Majority Lenders may appoint a successor Security Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 30 days after the notice of resignation was given, the Security Agent (after consultation with the Facility Agent) may appoint a successor Security Agent.
|
(d)
|
The retiring Security Agent (the "Retiring Security Agent") shall, at its own cost, make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents.
|
(e)
|
The Security Agent's resignation notice shall only take effect upon (i) the appointment of a successor and (ii) the transfer, by way of a document expressed as a deed, of all of the Security Property to that successor.
|
(f)
|
Upon the appointment of a successor, the Retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 31.22 (Winding up of trust) and under paragraph (d) above) but shall, in respect of any act or omission by it whilst it was the Security Agent, remain entitled to the benefit of this Clause 31 (The Security Agent), Clause 14.4 (Indemnity to the Security Agent), Clause 31.14 (Lenders' indemnity to the Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude its liability in acting as Security Agent. Its successor and each of the other
|
(g)
|
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above but the cost referred to in paragraph (d) above shall be for the account of the Borrower.
|
(h)
|
The consent of the Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent.
|
(a)
|
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Finance Documents.
|
(b)
|
That delegation may be made upon any terms and conditions (including the power to sub delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties and it shall not be bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any such Receiver or Delegate (or sub delegate), unless, in the case only of any liability to a Finance Party but not to any Obligor, directly caused by the gross negligence or wilful misconduct of such Delegate (or sub delegate).
|
(a)
|
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
|
(ii)
|
for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Agent deems to be relevant; or
|
|
(iii)
|
for obtaining or enforcing any judgment in any jurisdiction, and the Security Agent shall give prior notice to the Borrower and the Facility Agent of that appointment.
|
(b)
|
Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Agent by this Agreement) and the duties and obligations that are conferred or imposed by the instrument of appointment.
|
(c)
|
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
(b)
|
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 34 (Payment Mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 34.5(Application of receipts; partial payments).
|
(a)
|
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and
|
(b)
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
33.5
|
Exceptiions
|
(a)
|
This Clause 33 (Sharing Among the Finance Parties) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
|
(ii)
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
(a)
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document other than the Hedging Agreements (where payments shall be made directly to the Hedge Counterparty) and unless a contrary indication appears in a Finance Document, that Obligor or Lender shall make an amount equal to such payment available to the Facility Agent for value on the due date at the time and in such funds specified by the Facility Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Facility Agent specifies.
|
(a)
|
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
If the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
(a)
|
Subject to paragraph (b) below and except as any Finance Document may otherwise provide, any payment that is received or recovered by any Finance Party under, in connection with, or pursuant to any Finance Document shall be paid to the Facility Agent which shall apply the same in the following order:
|
|
(i)
|
first, in or towards payment of any amounts then due and payable under any of the Finance Documents;
|
|
(ii)
|
secondly, in retention of an amount equal to any amount not then payable under any Finance Document but which the Facility Agent, by notice to the Borrower and the other Finance Parties, states in its opinion will or may become payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them; and
|
|
(iii)
|
thirdly, any surplus shall be paid to the Borrower or to any other person who appears to be entitled to it.
|
(b)
|
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
|
(i)
|
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Facility Agent and the Security Agent under the Finance Documents, except for the Hedging Agreements;
|
|
(ii)
|
secondly, in or towards satisfaction pro rata of all amounts to any Finance Party under Clause 14.2(b) which amounts have been already paid by that Finance Party to the Facility Agent, Security Agent, any Receiver or Delegate (as the case may be) pursuant to Clause 30.11 (Lenders' indemnity to the Facility Agent) or Clause 31.14 (Lenders' indemnity to the Security Agent);
|
|
(iii)
|
thirdly, in or towards payment pro rata of any accrued interest or commission due to any Finance Party but unpaid under this Agreement;
|
|
(iv)
|
fourthly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
|
(v)
|
fifthly , in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents (except for the Hedging Agreements); and
|
|
(vi)
|
lastly, in or towards payment pro rata of any sum due but unpaid under the Hedging Agreements.
|
(c)
|
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
(a)
|
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b)
|
During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
(a)
|
Subject to paragraphs (b) to (c) below, dollar is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c)
|
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent (after consultation with the Borrower); and
|
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent (acting reasonably).
|
(b)
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
(a)
|
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
(b)
|
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c)
|
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d)
|
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 42 (Amendments and Waivers);
|
(e)
|
the Facility Agent shall not be liable for any damages, costs or losses whatsoever arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 34.10 (Disruption to Payment Systems etc.) unless, in the case only of any liability to a Finance Party but not to any Obligor, directly caused by its gross negligence or wilful misconduct; and
|
(f)
|
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
(a)
|
in the case of the Borrower, that specified in Part A of Schedule 1 (the Borrower);
|
(b)
|
in the case of each Lender or any other Obligor, that specified in Part B of Schedule 1 (Guarantors and Drillships) or Part C of Schedule 1 (the Lenders), respectively, or, if it becomes a Party after the date of this Agreement, that notified in writing to the Facility Agent on or before the date on which it becomes a Party;
|
(c)
|
in the case of the Facility Agent, that specified in Part D of Schedule 1 (The Servicing Banks); and
|
(d)
|
in the case of the Security Agent, that specified in Part D of Schedule 1 (The Servicing Banks),
|
(a)
|
Any communication or document made or delivered by one person to another under or in
|
|
(i)
|
if by way of fax, when received in legible form; or
|
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post with postage prepaid in an envelope addressed to it at that address,
|
(b)
|
Any communication or document to be made or delivered to a Servicing Bank will be effective only when actually received by that Servicing Bank and then only if it is expressly marked for the attention of the department or officer of that Servicing Bank specified in Schedule 1 (The Parties) (or any substitute department or officer as that Servicing Bank shall specify for this purpose).
|
(c)
|
All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document.
|
(d)
|
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e)
|
Any communication or document which becomes effective, in accordance with paragraphs (a)to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
(a)
|
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 36.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.
|
(a)
|
It is recognised that one of the main methods of communication between the Facility Agent and the other Finance Parties will be by posting information and documentation onto an electronic website designated by the Facility Agent.
|
(b)
|
Subject to sub-paragraph (a) above, any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means, to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:
|
|
(i)
|
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
|
|
(ii)
|
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
(c)
|
Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
(d)
|
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
|
(ii)
|
if not in English, and if so required by the Facility Agent, accompanied by a certified English translation prepared by a translator approved by the Facility Agent and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
(a)
|
Subject to Clause 42.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and, in the case of an amendment, the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 42 (Amendments and Waivers).
|
|
(i)
|
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
|
(ii)
|
a postponement to or extension of the date of payment of any amount under the Finance Documents;
|
|
(iii)
|
a reduction in the Applicable Margin or the amount of any payment of principal, interest, fees or commission payable;
|
|
(iv)
|
an increase in or extension of any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
|
(v)
|
a change to any Obligor;
|
|
(vi)
|
any provision which expressly requires the consent of all the Lenders;
|
|
(vii)
|
this Clause 42 (Amendments and Waivers);
|
|
(viii)
|
any change to the preamble (Background), Clause 2 (The Facilities ), Clause 3 (Purpose), Clause 5 (Utilisation), Clause 8 (Interest), Clause 25 (Application of Earnings), Clause 28 (Changes to the Lenders) or Clause 34.5;
|
|
(ix)
|
any release of, or material variation to, any Transaction Security, guarantee, indemnity or subordination arrangement set out in a Finance Document, save where the provisions of Clauses 21.17 (Disposals) and 7.8 (Mandatory prepayment on sale or Total Loss) are complied with; or
|
|
(x)
|
the nature or scope of the guarantee and indemnity granted under Clause 17 (Guarantee and Indemnity);
|
(b)
|
Without prejudice to Clause (a) above, an amendment to or waiver that has the effect of changing or which relates to the following GIEK Conditions:
|
|
(i)
|
Clause 1.5 (Third party rights);
|
|
(ii)
|
Clause 11.3 (Fees payable in respect of the GIEK Guarantee); and
|
|
(iii)
|
Clause 27 (Recourse Requirements and Rights of Subrogation);
|
(c)
|
An amendment or waiver which relates to the rights or obligations of a Servicing Bank, a Hedge Counterparty or a Mandated Lead Arranger (each in their capacity as such) may not be effected without the consent of that Servicing Bank, Hedge Counterparty or, as the case may be, the Mandated Lead Arranger.
|
|
Any Finance Party may disclose:
|
(a)
|
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Representatives and professional advisers;
|
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's
|
|
(iii)
|
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any
|
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
|
(vii)
|
to whom or for whose benefit that Finance Party chargers, assigns or otherwise creates Security (or may do so) pursuant to Clause 28.8 (Security over Lenders' rights);
|
|
(A)
|
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
|
(B)
|
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
|
(C)
|
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c)
|
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b) (ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has undertaken to maintain the confidentiality of the information by entering into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the relevant Finance Party;
|
(d)
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors.
|
(e)
|
Kexim, GIEK and Eksportkreditt may without the prior consent of any Obligor publish key information concerning the GIEK Guarantee, this Agreement and the transactions contemplated thereby, including but not limited to key information regarding the currency, amount and purpose of the Total Commitments, the Loan and the amount guaranteed by GIEK, the name of the Parties and their country of residence, the name of the Builder, the type of drillships, the date of this Agreement and the issuance of the GIEK Guarantee.
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 43.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 43 (Confidentiality).
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceased to be a Finance Party.
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
|
(b)
|
The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary.
|
(c)
|
This Clause 46.1 (Jurisdiction) is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
(a)
|
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):
|
|
(i)
|
irrevocably appoints Ince Process Agents Ltd of International House, 1, St. Katharine's Way, London E1W 1AY, United Kingdom as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
|
(ii)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
(b)
|
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrower (on behalf of all the Obligors) must immediately (and in any event within three days of such event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.
|
Name
|
Place of Incorporation
|
Registration number
|
Address for Communication
|
Drillships Ocean
Ventures Inc.
|
Marshall Islands
|
55652
|
c/o OCEAN RIG UDW INC.,
Cyprus office,
10 Skopa street, Nicosia, Cyprus
|
Name
|
Place of Incorporation
|
Registration no.
|
Address for Communication
|
Ocean Rig UDW Inc.
|
Marshall Islands
|
27330
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Drillship Kythnos Owners Inc.
|
Marshall Islands
|
47636
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Drillship Kythnos Shareholders Inc.
|
Marshall Islands
|
47637
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Drillship Skiathos Owners Inc.
|
Marshall Islands
|
45866
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Drillship Skiathos Shareholders Inc.
|
Marshall Islands
|
45868
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Drillship Skyros Owners Inc.
|
Marshall Islands
|
46347
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Drillship Skyros Shareholders Inc.
|
Marshall Islands
|
46346
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Ocean Rig Cunene Operations Inc.
|
Marshall Islands
|
56812
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Drillships Ocean Ventures Operations Inc.
|
Marshall Islands
|
56152
|
c/o Ocean Rig UDW Inc., Cyprus office, 10 Skopa street, Nicosia, Cyprus
|
Ocean Rig Block 33 Brasil Cooperatief U.A.
|
Netherlands
|
55821464
|
Claude Debussylaan 24,
1082 MD Amsterdam, the Netherlands
|
Ocean Rig Block 33 Brasil B.V.
|
Netherlands
|
55821812
|
Claude Debussylaan 24,
1082 MD Amsterdam, the Netherlands
|
Name, Hull No. and Drillship Owner
|
Satisfactory Drilling Contract
|
Intra-Group Charterer
|
Approved Registry
|
Drillship Athena
ultra-deepwater drillship known as SHI Hull No. 2032 and to be named "Ocean Rig Athena"
Owned by Drillship Kythnos Owners Inc.
|
Client: Conoco Phillips Angola 36 Ltd and Conoco Phillips Angola 37 Ltd
Date of contract: 15 November 2012
Expiry date:
Three years from the commencement date under the contract
|
Ocean Rig Cunene Operations Inc.
|
Marshall Islands
|
Drillship Mylos
ultra-deepwater drillship known as SHI Hull No. 1979 and to be named "Ocean Rig Mylos"
Owned by Drillship Skiathos Owners Inc.
|
Client: Repsol Sinopec Brasil S.A
Date of contract: 17 August 2012
Expiry date: Three years from the commencement date under the contract
|
Ocean Rig Block 33 Brasil B.V.
|
Marshall Islands
|
Drillship Skyros
ultra-deepwater drillship known as SHI Hull No. 2013 and to be named "Ocean Rig Skyros"
Owned by Drillship Skyros Owners Inc.
|
Client:
Date of contract: Expiry date:
|
Marshall Islands
|
Name of Lender
|
Commitment
|
Address for Communication
|
THE ORIGINAL COMMERCIAL LENDERS
|
||
DNB Bank ASA
|
Commercial Athena Facility:
USD 41,333,333.33
Commercial Mylos Facilities:
USD 41,333,333.33
Commercial Skyros Facility:
USD 41,333,333.34
Total Commitment: USD 124,000,000
|
DNB Bank ASA,
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P O Box 1600 Sentrum Bj0rvika M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit Middle Office and Agency Fax: + 47 22482894
|
Nordea Bank Finland Plc., London Branch
|
Commercial Athena Facility:
USD 25,000,000
Commercial Mylos Facilities:
USD 25,000,000
Commercial Skyros Facility:
USD 25,000,000
Total Commitment: USD 75,000,000
|
Nordea Bank Finland Plc., London Branch
55 Basinghall Street,
London EC2V 5NB,
United Kingdom
Admin matters:
Mike Sheppard/Andy Searle Fax: +44 (0)20 7726 9102
Credit matters:
Martin Kahm/Sandra Pavic-Watkinson Fax: +44 (0)20 7726 9188
|
ABN AMRO Bank N.V., Oslo Branch
|
Commercial Athena Facility:
USD 24,333,333.33
Commercial Mylos Facilities:
USD 24,333,333.34
Commercial Skyros Facility:
USD 24,333,333.33
Total Commitment: USD 73,000,000
|
ABN AMRO Bank N.V., Oslo Branch, Olav V Gate 5,
0161 Oslo
PB 2069 Vika,
0125 Oslo
Attention: Petter H Bakke Fax: +47 23 11 49 40
|
DVB Bank SE, Nordic Branch
|
Commercial Athena Facility:
USD 10,666,666,67
Commercial Mylos Facilities:
USD 10,666,666,67
Commercial Skyros Facility:
USD 10,666,666,66
Total Commitment: USD 32,000,000
|
DVB Bank SE Nordic Branch, Strandgaten 18,
5013 Bergen,
Norway
Attention: Kristin Olstad Fax: +47 55 30 94 75
|
Skandinaviska Enskilda Banken AB (publ)
|
Commercial Athena Facility:
USD 24,333,333.33
Commercial Mylos Facilities:
USD 24,333,333.33
Commercial Skyros Facility:
USD 24,333,333.34
Total Commitment: USD 73,000,000
|
Skandinaviska Enskilda Banken AB (publ), Rissneleden 110,
Structured Credits Operations, RA8, S-106 40 Stockholm, Sweden
Attention: Annika Forsberg Fax: +46 8 611 0384
|
Swedbank AB (publ)
|
Commercial Athena Facility:
USD 24,333,333.34
Commercial Mylos Facilities:
USD 24,333,333.33
Commercial Skyros Facility:
USD 24,333,333.33
Total Commitment: USD 73,000,000
|
Swedbank AB Oslo, Filipstad Brygge 1,
0252 Oslo,
Norway
PO Box 1441 Vika, N-0115 Oslo
Operations:
Attention: Rune Kittilsen Fax: +47 231 162 01
Credit Matters: Attention: Johan Erland
|
EKSPORTKREDITT
|
||
Eksportkreditt Norge AS
|
Eksportkreditt GIEK Athena Facility: USD
150.0. 000
Eksportkreditt GIEK Mylos Facility: USD
150.0. 000
Eksportkreditt GIEK Skyros Facility: USD
150.0. 000
Total Commitment: USD 450,000,000
|
Hieronymus Heyerdahls gate 1, 0160 Oslo,
Norway
Attention: Loan administration Fax: +47 22 31 35 01
|
KEXIM
|
||
The Export-Import Bank of Korea
|
Kexim Athena Facility: USD 150,000,000 Kexim Mylos Facility: USD 150,000,000 Kexim Skyros Facility: USD 150,000,000 Total Commitment: USD 450,000,000
|
The Export-Import Bank of Korea,
38 Eunhaeng-ro(16-1 Yeouido-dong) Yeongdeungpo-gu,
Seoul,
Republic of Korea Credit matters:
Attention: Jong Bae, Yang / Yun Hee, Kim
jbyang@koreaexim.go.kr,
withuni@koreaexim.go.kr
Administration matters:
Attention: In Gun, Yeo / Yun Hee, Kim
igyeo@koreaexim.go.kr
withuni@koreaexim.go.kr
Fax: 82-2-3779-6778
|
Facility Agent
|
Address for Communication
|
DNB Bank ASA
|
DNB Bank ASA,
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P O Box 1600 Sentrum Bj0rvika M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit Middle Office and Agency E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249 Fax: + 47 22482894
|
Security Agent
|
Address for Communication
|
DNB Bank ASA
|
DNB Bank ASA,
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P O Box 1600 Sentrum Bj0rvika M-14 S, 0021 Oslo, Norway
Attention: Anne-Lise Iversen, Credit Middle Office and Agency E-mail: anne-lise.iversen@dnb.no
Tel: + 47 48014249 Fax: + 47 22482894
|
1
|
Obligors
|
1.1
|
Certificate of incorporation (or similar) and up to date articles of the Dutch Obligors.
|
1.2
|
By-laws (or similar) (if applicable).
|
1.3
|
Updated Good Standing Certificate for all Obligors incorporated in the Marshall Islands (or, in respect of Dutch Obligors, an updated extract from the Dutch Register of companies).
|
1.4
|
A copy of a resolution of the board of directors and shareholders (if applicable) of each Obligor:
|
(a)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(b)
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request and each Selection Notice) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
1.5
|
An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party (notarised and apostilled if requested by the Facility Agent).
|
1.6
|
Passport photocopies for all Directors certified by the legal advisor of the Borrower.
|
1.7
|
A Directors/Secretary's Certificate, certifying and attaching the constitutional documents and authorisations referred to in paragraph 1.1 - 1.5 above and
|
(a)
|
certifying that each copy document is correct, complete and in full force and effect as at a the date of this Agreement;
|
(b)
|
certifying the identity of its directors, officers and (except for the Parent) shareholder(s); and
|
(c)
|
confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.
|
1.8
|
A certificate of each Obligor that is incorporated outside the UK (signed by a director) certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and specifying the name and registered number under which it is registered with the Registrar of Companies.
|
This Agreement duly executed.
|
2.2
|
The Fee Letters duly executed.
|
2.3
|
The Hedging Agreements.
|
2.4
|
The Accounts Security duly executed, together with notice to and acknowledgement from
|
2.5
|
The Shares Security duly executed, together with (if applicable) original share certificates, stock powers, undated directors' letters of resignation and irrevocable proxies or such other deliverables as required by the legal advisers to the Finance Parties.
|
3.1
|
The GIEK Guarantee.
|
3.2
|
Written confirmation from Watson, Farley & Williams, London, legal advisers to the Finance Parties in England, addressed to Eksportkreditt and/or the Facility Agent, in such form and subject to such qualifications as agreed between the Facility Agent, Eksportkreditt and Watson, Farley & Williams, that all GIEK Conditions have been included in the Finance Documents.
|
3.3
|
The requirements by GIEK pursuant to the GIEK Guarantee being met.
|
|
4.1
|
Copies of all Shipbuilding Contracts and of all documents signed or issued by each Drillship Owner or the Builder (or both of them) under or in connection with each such agreement.
|
4.2
|
Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution by the relevant Drillship Owner of the Shipbuilding Contract and of all documents to be executed by such party.
|
5.1
|
A copy of the Satisfactory Drilling Contract for the relevant Drillship and of all documents
|
5.2
|
A certificate of an authorised signatory of the Borrower that the Satisfactory Drilling Contract for the relevant Drillship is in full force and existence and that there has been no amendments to it.
|
5.3
|
A summary of the Satisfactory Drilling Contracts prepared by legal advisors to the Finance Parties.
|
5.4
|
Board resolutions and powers of attorneys evidencing the due authorisation and execution by the relevant Drillship Owner and the Intra-Group Charterer of all documents to be executed by that Drillship Owner and Intra-Group Charterer under or in connection with the relevant Bareboat Charter and/or a Satisfactory Drilling Contract.
|
6.1
|
Evidence that any process agent referred to in Clause 46.2 (Service of process), if not an Obligor, has accepted its appointment.
|
6.2
|
If relevant, confirmation that any withholding tax will be paid or application to tax authorities is or will be sent.
|
|
performance of the transactions contemplated by any Finance Document or any related document or for the validity and enforceability of any Finance Document and/or related document.
|
6.4
|
The Original Financial Statements and, if available, audited consolidated financial statements of the Parent and unaudited consolidated financial statements of the Borrower for the financial year ended 31 December 2012.
|
6.5
|
To the extent applicable, such evidence as the Facility Agent may require for the Finance Parties to be able to satisfy each of their "know your customer" or similar identification procedures in relation to the transactions contemplated by the Finance Documents, including without limitation a written statement of each Obligor listing the natural persons ultimately and beneficially controlling and/or owning more than 25 per cent. of each of the Obligors.
|
6.6
|
Evidence that any fees, costs and expenses then due from the Borrower pursuant to
|
Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid.
|
7.1
|
A legal opinion of Watson, Farley & Williams, London, legal advisers to the Finance Parties in England, in such form as agreed between that legal adviser and the Finance Parties.
|
7.2
|
A legal
|
opinion of Watson, Farley & Williams (New York) LLP, legal advisers to the Finance Parties in the Marshall Islands, in such form as agreed between that legal adviser and the Finance Parties.
|
7.3
|
A legal
|
opinion of Nauta Dutilh, legal advisers to the Finance Parties in the Netherlands, in such form as agreed between that legal adviser and the Finance Parties.
|
7.4
|
A legal
|
opinion of Wikborg Rein, legal advisers to the Finance Parties in Norway, in such form as agreed between that legal adviser and the Finance Parties.
|
7.5
|
A legal
|
opinion of the legal advisers to the Finance Parties in any other relevant jurisdiction, in such form as agreed between that legal adviser and the Finance Parties.
|
|
CONDITIONS PRECEDENT TO SUBSEQUENT UTILISATION REQUESTS
|
1.1
|
A certificate of the Directors/Secretary of each Obligor certifying that each copy document
|
2.1
|
A copy of the Satisfactory Drilling Contract for the relevant Drillship and of all documents
|
2.2
|
A certificate of an authorised signatory of the Borrower that the Satisfactory Drilling Contract for the relevant Drillship is in full force and existence and that there has been no amendments to it.
|
2.3
|
A summary of the Satisfactory Drilling Contracts prepared by legal advisors to the Finance Parties.
|
2.4
|
Board resolutions and powers of attorneys evidencing the due authorisation and execution by the relevant Drillship Owner and the Intra-Group Charterer of all documents to be executed by that Drillship Owner and Intra-Group Charterer under or in connection with the relevant Bareboat Charter and/or a Satisfactory Drilling Contract.
|
3.1
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or any Satisfactory Drilling Contract or for the validity and enforceability of any Finance Document or any Satisfactory Drilling Contract.
|
3.2
|
The Original Financial Statements and the latest financial annual accounts of the Parent and the Borrower.
|
1.1
|
Updated Good Standing Certificate for each Drillship Owner.
|
2.1
|
The Mortgage duly executed, together with documentary evidence that the Mortgage has been duly registered as a valid first preferred ship mortgage in accordance with the laws of the jurisdiction of the Approved Flag.
|
2.2
|
The General Assignment duly executed and perfected.
|
2.3
|
the Manager's Undertaking.
|
3.1
|
Documentary evidence that the Drillship:
|
(a)
|
has been unconditionally delivered by the Builder to, and accepted by, the relevant Drillship Owner under the Shipbuilding Contract, including but not limited to a copy of the protocol of delivery and acceptance for that Drillship with no material recommendations or adverse notations, and that the full purchase price payable (including the equity payable) and all other sums due to the Builder under the Shipbuilding Contract, other than the sums to be financed pursuant to the Utilisation have been paid to the Builder;
|
(b)
|
is definitively and permanently registered in the name of the relevant Drillship Owner under the Approved Flag;
|
(c)
|
is in the absolute and unencumbered ownership of the relevant Drillship Owner save as contemplated by the Finance Documents;
|
(d)
|
maintains the Approved Classification with the Approved Classification Society; and
|
(e)
|
is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with.
|
3.2
|
Documents establishing that the Drillship will, as from the Utilisation Date, be managed by the Manager, together with copies of the Manager's Document of Compliance and of the Drillship's Safety Management Certificate (together with any other details of the applicable safety management system which the Facility Agent requires) and of any other documents required under the ISM Code and the ISPS Code in relation to the Drillship including without limitation an ISSC.
|
3.3
|
An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require.
|
3.4
|
Evidence of the Market Value of the relevant Drillship, confirming that the Market Value of the relevant Drillship (or, in respect of the second and third Drillship to be delivered, the relevant Drillship together with Drillship(s) already delivered) exceeds 140 per cent. of the Loan.
|
4
|
Specific GIEK/Eksportkreditt documents
|
4.1
|
Written confirmation from Watson, Farley & Williams, London, legal advisers to the Finance Parties in England, addressed to Eksportkreditt and/or the Facility Agent, in such form and subject to such qualifications as agreed between the Facility Agent, Eksportkreditt and Watson, Farley & Williams, that all conditions precedent for disbursing the proposed Eksportkreditt GIEK Facility Loan have been fulfilled.
|
5.1
|
A legal opinion of Watson, Farley & Williams, London, legal advisers to the Finance Parties in England, in such form as agreed between that legal adviser and the Finance Parties.
|
5.2
|
A legal opinion of Watson, Farley & Williams (New York) LLP, legal advisers to the Finance Parties in the Marshall Islands, in such form as agreed between that legal adviser and the Finance Parties.
|
5.3
|
A legal opinion of Nauta Dutilh, legal advisers to the Finance Parties in the Netherlands, in such form as agreed between that legal adviser and the Finance Parties.
|
1
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2
|
We wish to make the following [Commercial Athena Facility Loan / Commercial Mylos Facility Loan / Commercial Skyros Facility Loan / Eksportkreditt GIEK Athena Facility Loan / Eksportkreditt GIEK Mylos Facility Loan / Eksportkreditt GIEK Skyros Facility Loan / Kexim Athena Facility Loan / Kexim Mylos Facility Loan / Kexim Skyros Facility Loan]:
|
Proposed Utilisation Date:
|
[·]
|
(or, if that is not a Business Day, the
|
||
next Business Day)
|
||||
Amount:
|
[·]
|
or, if less, the Available Facility
|
||
Interest Period:
|
[·]
|
|||
3
|
We confirm that each condition specified in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Eksportkreditt conditions precedent) and Clause 4.3 (Further conditions precedent) as they relate to the Advance to which this Utilisation Request refers of the Agreement is satisfied on the date of this Utilisation Request.
|
4
|
The proceeds of this Advance should be credited to [account].
|
5
|
This Utilisation Request is irrevocable.
|
1
|
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2
|
We request that the next Interest Period for the [Commercial Athena Facility Loan /Commercial Mylos Facility Loan / Commercial Skyros Facility Loan / Eksportkreditt GIEK Athena Facility Loan / Eksportkreditt GIEK Mylos Facility Loan / Eksportkreditt GIEK Skyros Facility Loan / Kexim Athena Facility Loan / Kexim Mylos Facility Loan / Kexim Skyros Facility Loan] be [·].
|
|
authorised signatory for Drillships Ocean Ventures Inc.
|
|
SCHEDULE 4
|
|
MANDATOR COST FORMULAE
|
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 Bank of England and/or the Financial Services Authority (or, in either case, 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 Facility 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 Facility Agent as a weighted average of the Lenders' Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the Loan) and will be expressed as a percentage rate per annum.
|
3
|
The Additional Cost Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Facility Agent. This percentage will be certified by that Lender in its notice to the Facility Agent to be its reasonable determination of the cost (expressed as a percentage of that Lender's participation in the Loan made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
|
4
|
The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Facility Agent as follows:
|
A x 0.01 per cent. per annum
|
||
300
|
||
5
|
For the purposes of this Schedule:
|
5.1
|
"Special Deposits" has the meaning given to it from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
|
5.2
|
"Fees Rules" means the rules on periodic fees contained in the Financial Services Authority Fees 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;
|
5.3
|
"Fee Tariffs" means the fee tariffs specified in the Fees Rules under the activity group A.l Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate); and
|
5.4
|
"Tariff Base" has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.
|
6
|
If requested by the Facility Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Facility Agent, the rate of charge payable by that 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 that Reference Bank as being the average of the Fee Tariffs
|
7
|
Each Lender shall supply any information required by the Facility Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
|
8
|
The rates of charge of each Reference Bank for the purpose of A above shall be determined by the Facility Agent based upon the information supplied to it pursuant to paragraph 7 above and on the assumption that, unless a Lender notifies the Facility 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 Facility Office in the same jurisdiction as its Facility Office.
|
9
|
The Facility 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 Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
|
10
|
The Facility 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 and 7 above.
|
11
|
Any determination by the Facility 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 Facility Agent may from time to time, after consultation with the Borrower 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 Bank of England, 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.
|
|
SCHEDULE 5
|
|
FORM OF TRANSFER CERTIFICATE
|
From:
|
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
To:
|
DNB Bank ASA (the Facility Agent)
|
Dated:
|
[·]
|
1
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2
|
We refer to Clause 28.5 (Procedure for transfer) of the Agreement:
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment and participation in the Loan under the Agreement as specified in the Schedule in accordance with Clause 28.5 (Procedure for transfer) of the Agreement, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
|
(b)
|
The proposed Transfer Date is [·].
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 36.2 (Addresses) of the Agreement are set out in the Schedule.
|
3
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of Existing Lenders) of the Agreement.
|
4
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
6
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
|
SCHEDULE 6
|
|
FORM OF ASSIGNMENT AGREEMENT
|
[Facility Office address fax number and attention details for notices and account details for payments.]
|
[Existing Lender]
|
[New Lender]
|
By: [·]
|
By: [·]
|
To:
|
DNB Bank ASA (the Facility Agent) and Drillships Ocean Ventures Inc. as Borrower, for and on behalf of each Obligor
|
From:
|
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
|
Dated:
|
[·]
|
1
|
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2
|
We refer to Clause 28.6 (Procedure for assignment):
|
(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement, the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender's Commitment and participations in the Loan under the Agreement as specified in the Schedule, subject to a fee of USD 5,000 payable to the Facility Agent (for its own account).
|
(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
3
|
The proposed Transfer Date is [·].
|
4
|
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5
|
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 36.2 (Addresses) are set out in the Schedule.
|
6
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility of Existing Lenders).
|
7
|
This Assignment Agreement acts as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 28.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), to the Borrower (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.
|
8
|
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
9
|
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
10
|
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
|
SCHEDULE 6
|
|
FORM OF ASSIGNMENT AGREEMENT
|
[Existing Lender]
|
[New Lender]
|
|
By:
|
By:
|
|
SCHEDULE 7
|
|
FORM OF COMPLIANCE CERTIFICATE
|
|
SCHEDULE 8
|
|
FORM OF ACCESSION LETTER
|
8.
|
We confirm that, as of the date hereof (i) each of the representations and warranties set out in Clause 18 (Representations) of the Agreement is true and correct, and (ii) no event or circumstances has occurred and is continuing which constitute or may constitute a Default and/or an Event of Default.
|
|
From:
|
Drillships Ocean Ventures Inc.
|
|
Dear Sirs
|
1
|
[·], a company duly incorporated under the laws of [·], agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 21.11 (New Guarantors) of the Agreement and provide such Security as required thereunder.
|
2
|
This Accession Letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accession Letter.
|
3
|
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
Vessel 1
|
||||||||||||||||||||||
Repayment instalments
|
||||||||||||||||||||||
Vessel
|
Vessel
|
GIEK
|
KEXIM
|
Commercial
|
||||||||||||||||||
Date
|
Outstanding
|
Repayments
|
Tranche
|
Tranche
|
Tranche
|
|||||||||||||||||
2013 - Q3 | 450,000,000 | -450,000,000 | 150,000,000 | 150,000,000 | 50,000,000 | |||||||||||||||||
2013 - Q4 | 440,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2014 - Q1 | 430,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2014 - Q2 | 420,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2014 - Q3 | 410,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2014 - Q4 | 400,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2015 - Q1 | 390,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2015 - Q2 | 380,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2015 - Q3 | 370,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2015 - Q4 | 360,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2016 - Q1 | 350,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2016 - Q2 | 340,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2016 - Q3 | 330,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2016 - Q4 | 320,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2017 - Q1 | 310,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2017 - Q2 | 300,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2017 - Q3 | 290,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2017 - Q4 | 280,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2018 - Q1 | 270,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2018 - Q2 | 260,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2018 - Q3 | ** | 250,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 |
Remaining
Amount
|
250,000,000 | 83,333,333 | 83,333,333 | 83,333,333 | ||||||||||||||||||
2018 - Q4 | 240,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2019 - Q1 | 230,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2019 - Q2 | 220,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2019 - Q3 | 210,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2019 - Q4 | 200,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2020 - Q1 | 190,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2020 - Q2 | 180,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2020 - Q3 | 170,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2020 - Q4 | 160,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2021 - Q1 | 150,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2021 - Q2 | 140,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2021 - Q3 | 130,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2021 - Q4 | 120,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2022 - Q1 | 110,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2022 - Q2 | 100,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2022 - Q3 | 90,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2022 - Q4 | 80,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2023 - Q1 | 70,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2023 - Q2 | 60,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2023 - Q3 | 50,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2023 - Q4 | 40,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2024 - Q1 | 30,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2024 - Q2 | 20,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2024 - Q3 | 10,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2024 - Q4 | 0 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 |
* Scheduled delivery date is July 2013
|
|||
** Commercial Tranche Maturity Date
|
|||
= Envisioned commercial irancne extension repayment scneauie
|
Vessel 2
|
||||||||||||||||||||||
Repayment instalments
|
||||||||||||||||||||||
Vessel
|
Vessel
|
GIEK
|
KEXIM
|
Commercial
|
||||||||||||||||||
Date
|
Outstanding
|
Repayments
|
Tranche
|
Tranche
|
Tranche
|
|||||||||||||||||
2013 - Q3 | - | - | - | - | - | |||||||||||||||||
2013 - Q41 | 450,000,000 | -450,000,000 | 150,000,000 | 150,000,000 | 50,000,000 | |||||||||||||||||
2014 - Q1 | 439,473,684 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2014 - Q2 | 428,947,368 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2014 - Q3 | 418,421,053 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2014 - Q4 | 407,894,737 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q1 | 397,368,421 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q2 | 386,842,105 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q3 | 376,315,789 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q4 | 365,789,474 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q1 | 355,263,158 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q2 | 344,736,842 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q3 | 334,210,526 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q4 | 323,684,211 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q1 | 313,157,895 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q2 | 302,631,579 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q3 | 292,105,263 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q4 | 281,578,947 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2018 - Q1 | 271,052,632 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2018 - Q2 | 260,526,316 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2018 - | ||||||||||||||||||||||
Q32 | 250,000,000 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 |
Remaining
Amount
|
250,000,000 | 82,142,857 | 82,142,857 | 85,714,286 | ||||||||||||||||||
2018 - Q4 | 239,130,435 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q1 | 228,260,870 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q2 | 217,391,304 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q3 | 206,521,739 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q4 | 195,652,174 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q1 | 184,782,609 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q2 | 173,913,043 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q3 | 163,043,478 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q4 | 152,173,913 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q1 | 141,304,348 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q2 | 130,434,783 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q3 | 119,565,217 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q4 | 108,695,652 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q1 | 97,826,087 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q2 | 86,956,522 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q3 | 76,086,957 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q4 | 65,217,391 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q1 | 54,347,826 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q2 | 43,478,261 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q3 | 32,608,696 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q4 | 21,739,130 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2024 - Q1 | 10,869,565 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2024 - Q2 | 0 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 |
Vessel 3
|
||||||||||||||||||||||
Repayment instalments
|
||||||||||||||||||||||
Vessel
|
Vessel
|
GIEK
|
KEXIM
|
Commercial
|
||||||||||||||||||
Date
|
Outstanding
|
Repayments
|
Tranche
|
Tranche
|
Tranche
|
|||||||||||||||||
2013 - Q3 | - | - | - | - | - | |||||||||||||||||
2013 - Q4 | 450,000,000 | -450,000,000 | 150,000,000 | 150,000,000 | 150,000,000 | |||||||||||||||||
2014 - Q1 | 439,473,684 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2014 - Q2 | 428,947,368 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2014 - Q3 | 418,421,053 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2014 - Q4 | 407,894,737 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q1 | 397,368,421 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q2 | 386,842,105 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q3 | 376,315,789 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2015 - Q4 | 365,789,474 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q1 | 355,263,158 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q2 | 344,736,842 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q3 | 334,210,526 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2016 - Q4 | 323,684,211 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q1 | 313,157,895 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q2 | 302,631,579 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q3 | 292,105,263 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2017 - Q4 | 281,578,947 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2018 - Q1 | 271,052,632 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2018 - Q2 | 260,526,316 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
2018 - | ||||||||||||||||||||||
Q33 | 250,000,000 | 10,526,316 | 3,571,429 | 3,571,429 | 3,383,459 | |||||||||||||||||
Remaining
|
||||||||||||||||||||||
amount
|
250,000,000 | 82,142,857 | 82,142,857 | 85,714,286 | ||||||||||||||||||
2018 - Q4 | 239,130,435 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q1 | 228,260,870 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q2 | 217,391,304 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q3 | 206,521,739 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2019 - Q4 | 195,652,174 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q1 | 184,782,609 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q2 | 173,913,043 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q3 | 163,043,478 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2020 - Q4 | 152,173,913 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q1 | 141,304,348 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q2 | 130,434,783 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q3 | 119,565,217 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2021 - Q4 | 108,695,652 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q1 | 97,826,087 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q2 | 86,956,522 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q3 | 76,086,957 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2022 - Q4 | 65,217,391 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q1 | 54,347,826 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q2 | 43,478,261 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q3 | 32,608,696 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2023 - Q4 | 21,739,130 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2024 - Q1 | 10,869,565 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 | |||||||||||||||||
2024 - Q2 | 0 | 10,869,565 | 3,571,429 | 3,571,429 | 3,726,708 |
Total Facility
|
||||||||||||||||||||||
Repayment instalments
|
||||||||||||||||||||||
Vessel
|
Vessel
|
GIEK
|
KEXIM
|
Commercial
|
||||||||||||||||||
Date
|
Outstanding
|
Repayments
|
Tranche
|
Tranche
|
Tranche
|
|||||||||||||||||
2013 - Q3 | * | 450,000,000 | -450,000,000 | 150,000,000 | 150,000,000 | 150,000,000 | ||||||||||||||||
2013 - Q4 | * | 1,340,000,000 | -890,000,000 | 296,666,667 | 296,666,667 | 296,666,667 | ||||||||||||||||
2014 - Q1 | 1,308,947,368 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2014 - Q2 | 1,277,894,737 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2014 - Q3 | 1,246,842,105 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2014 - Q4 | 1,215,789,474 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2015 - Q1 | 1,184,736,842 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2015 - Q2 | 1,153,684,211 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2015 - Q3 | 1,122,631,579 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2015 - Q4 | 1,091,578,947 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2016 - Q1 | 1,060,526,316 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2016 - Q2 | 1,029,473,684 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2016 - Q3 | 998,421,053 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2016 - Q4 | 967,368,421 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2017 - Q1 | 936,315,789 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2017 - Q2 | 905,263,158 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2017 - Q3 | 874,210,526 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2017 - Q4 | 843,157,895 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2018 - Q1 | 812,105,263 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2018 - Q2 | 781,052,632 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | |||||||||||||||||
2018 - | ||||||||||||||||||||||
Q3 | ** | 750,000,000 | 31,052,632 | 10,476,190 | 10,476,190 | 10,100,251 | ||||||||||||||||
Remaining
|
||||||||||||||||||||||
amount
|
750,000,000 | 247,619,048 | 247,619,048 | 254,761,905 | ||||||||||||||||||
2018 - Q4 | 718,260,870 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2019 - Q1 | 686,521,739 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2019 - Q2 | 654,782,609 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2019 - Q3 | 623,043,478 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2019 - Q4 | 591,304,348 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2020 - Q1 | 559,565,217 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2020 - Q2 | 527,826,087 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2020 - Q3 | 496,086,957 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2020 - Q4 | 464,347,826 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2021 - Q1 | 432,608,696 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2021 - Q2 | 400,869,565 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2021 - Q3 | 369,130,435 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2021 - Q4 | 337,391,304 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2022 - Q1 | 305,652,174 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2022 - Q2 | 273,913,043 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2022 - Q3 | 242,173,913 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2022 - Q4 | 210,434,783 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2023 - Q1 | 178,695,652 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2023 - Q2 | 146,956,522 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2023 - Q3 | 115,217,391 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2023 - Q4 | 83,478,261 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2024 - Q1 | 51,739,130 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2024 - Q2 | 20,000,000 | 31,739,130 | 10,476,190 | 10,476,190 | 10,786,749 | |||||||||||||||||
2024 - Q3 | 10,000,000 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 | |||||||||||||||||
2024 - Q4 | 0 | 10,000,000 | 3,333,333 | 3,333,333 | 3,333,333 |
1.
|
We refer to the Agreement. This is a [Prepayment][Cancellation] Notice. Terms defined in the Agreement have the same meaning in this [Prepayment][Cancellation] Notice unless given a different meaning in this [Prepayment][Cancellation] Notice.
|
2.
|
[We wish to [prepay the whole Loan] [make a prepayment under the [Loan] [Commercial Athena Facility Loan / Commercial Mylos Facility Loan / Commercial Skyros Facility Loan / Eksportkreditt GIEK Athena Facility Loan / Eksportkreditt GIEK Mylos Facility Loan / Eksportkreditt GIEK Skyros Facility Loan / Kexim Athena Facility Loan / Kexim Mylos Facility Loan / Kexim Skyros Facility Loan]:
|
Proposed Prepayment Date:
|
[·]
|
(or, if that is not a Business Day, the
|
||
next Business Day)
|
||||
Amount:
|
[·]
|
3.
|
[We wish to cancel [the Total Commitments] [unutilised amounts available under the [Commercial Athena Facility / Commercial Mylos Facility/ Commercial Skyros Facility / Eksportkreditt GIEK Athena Facility / Eksportkreditt GIEK Mylos Facility / Eksportkreditt GIEK Skyros Facility / Kexim Athena Facility / Kexim Mylos Facility / Kexim Skyros Facility in an amount of [·] (in relation to any voluntary cancellation being an amount of minimum USD 10,000,000)].
|
(Clause 5.1 (Delivery of a Utilisation Request))
|
with paragraph (e) of Clause 14 (Other indemnities), four Business Days before the intended day of such pre-positioning of funds.
|
|
Three Business Days before the expiry of the preceding Interest Period (Clause 9.1 (Selection of Interest Periods))
|
||
Delivery of a duly completed Selection Notice (Clause 9.1 (Selection of Interest Periods))
|
||
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation)
Utilisation Date (Clause 5.1 (Delivery of a Utilisation Request)) or, if funds are to be prepositioned with the Builder's bank in accordance
|
Four Business Days before the intended Utilisation Date or, if funds are to be prepositioned with the Builder's bank in accordance with paragraph (e) of Clause 14 (Other indemnities), four Business Days before the intended day of such pre-positioning of funds.
|
|
Libor is fixed
|
||
Quotation Day as of 11:00 am London time
|
2.
|
Ocean Rig Brasil Cooperatief UA is owned 99% by Ocean Rig Operations and 1% by Ocean Rig UDW Inc.
|
3.
|
Ocean Rig Black Sea Cooperatief UA is owned 99% by Drillship Hydra Owners Inc. and 1% by Drillships Holdings Inc.
|
4.
|
Ocean Rig Drilling Operations Cooperatief UA is owned 99% by Drillship Skopelos Owners Inc. and 1% by Drillships Investment Inc.
|
|
5.
|
Ocean Rig Olympia Brasil Operations Cooperatief UA is owned 99% by Drillship Paros Owners Inc. ,1% by Drillships Holdings Inc.
|
6.
|
Ocean Rig Block 33 Brasil Cooperatief UA is owned 99% by Drillship Ocean Ventures Operations Inc., 1% by Drillships Ocean Ventures Inc.
|
7.
|
Olympia Rig Angola Limitada is owned 49% by Olympia Rig Angola Holding S.A and 51% by Angolan shareholders
|
|
EXECUCTION PAGES
|
BORROWER
|
|||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DRILLSHIPS OCEAN VENTURES INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
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)
|
||||
Witness address:
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)
|
||||
GUARANTOR and PARENT
|
|||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
OCEAN RIG UDW INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
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)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
GUARANTORS
|
|||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DRILLSHIP SKIATHOS OWNERS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
Witness’ signature:
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)
|
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Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised for and on behalf of
|
)
|
||||
DRILLSHIP SKIATHOS SHAREHOLDERS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DRILLSHIP SKYROS OWNERS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised for and on behalf of
|
)
|
||||
DRILLSHIP SKYROS SHAREHOLDERS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DRILLSHIP KYTHNOS OWNERS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised for and on behalf of
|
)
|
||||
DRILLSHIP KYTHNOS SHAREHOLDERS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
OCEAN RIG CUNENE OPERATIONS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised for and on behalf of
|
)
|
||||
DRILLSHIPS OCEAN VENTURES OPERATIONS INC.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised for and on behalf of
|
)
|
||||
OCEAN RIG BLOCK 33 BRASIL COOPERATIEF U.A.
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Dimitrios Glynos
|
)
|
/s/ Dimitrios Glynos
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
OCEAN RIG BLOCK 33 BRASIL B.V
|
)
|
||||
in the presence of:
|
)
|
||||
Eugenia Voulika
|
|||||
Attorney-at-law
|
|||||
52, Ag. Konstantinou Street – 151 24 Marousi
|
|||||
Athens, Greece
|
|||||
Tel. + 30 210 614 0580 Fax + 30 210 614 0257
|
|||||
/s/ Eugenia Voulika
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
LENDERS
|
|||||
SIGNED by Nigel Thomas, Attorney-in-fact
|
)
|
/s/ Nigel Thomas
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DNB BANK ASA
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
NORDEA BANK FINLAND PLC., LONDON BRANCH
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
ABN AMRO BANK N.V., OSLO BRANCH
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DVB BANK SE, NORDIC BRANCH
|
)
|
||||
in the presence of:
|
)
|
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised for and on behalf of
|
)
|
||||
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
||||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
SWEDBANK AB (PUBL)
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
EKSPORTKREDITT NORGE AS
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
KEXIM
|
|||||
SIGNED by Nigel Thomas, Attorney-in-fact
|
)
|
/s/ Nigel Thomas
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
THE EXPORT-IMPORT BANK OF KOREA
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
MANDATED LEAD ARRANGERS
|
|||||
SIGNED by Nigel Thomas, Attorney-in-fact
|
)
|
/s/ Nigel Thomas
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DNB BANK ASA
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
NORDEA BANK FINLAND PLC., LONDON BRANCH
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
|
)
|
||||
in the presence of:
|
)
|
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
SWEDBANK AB (PUBL)
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
ABN AMRO BANK N.V., OSLO BRANCH
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
HEDGE COUNTERPARTIES
|
|||||
SIGNED by Nigel Thomas, Attorney-in-fact
|
)
|
/s/ Nigel Thomas
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
DNB BANK ASA
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
NORDEA BANK FINLAND PLC., LONDON BRANCH
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
SWEDBANK AB (PUBL)
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised for
|
)
|
||||
and on behalf of
|
)
|
||||
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised
|
)
|
||||
for and on behalf of
|
)
|
||||
ABN AMRO BANK N.V., OSLO BRANCH
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SIGNED by Ida Marie Oedegaard, Attorney-in-Fact
|
)
|
/s/ Ida Marie Oedegaard
|
|||
duly authorised for
|
)
|
||||
and on behalf of
|
)
|
||||
ABN AMRO BANK N.V.
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
FACILITY AGENT
|
|||||
SIGNED by Nigel Thomas, Attorney-in-fact
|
)
|
/s/ Nigel Thomas
|
|||
duly authorised for
|
)
|
||||
and on behalf of
|
)
|
||||
DNB BANK ASA
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
SECURITY AGENT
|
|||||
SIGNED by Nigel Thomas, Attorney-in-fact
|
)
|
/s/ Nigel Thomas
|
|||
duly authorised for
|
)
|
||||
and on behalf of
|
)
|
||||
DNB BANK ASA
|
)
|
||||
in the presence of:
|
)
|
||||
/s/ Joe Osgerby-Lacey
|
|||||
Joe Osgerby-Lacey
|
|||||
Trainee Solicitor
|
|||||
London EC2A 2HB
|
|||||
Witness’ signature:
|
)
|
||||
Witness’ name
|
)
|
||||
Witness address:
|
)
|
||||
Name of Subsidiary
|
Jurisdiction of Organization
|
Drillship Hydra Owners Inc.
|
Marshall Islands
|
Drillship Paros Owners Inc.
|
Marshall Islands
|
Drillship Kithira Owners Inc.
|
Marshall Islands
|
Drillship Skopelos Owners Inc.
|
Marshall Islands
|
Ocean Rig AS
|
Norway
|
Ocean Rig UK Ltd.
|
United Kingdom
|
Ocean Rig Ltd.
|
United Kingdom
|
Ocean Rig Ghana Ltd.
|
Ghana
|
Ocean Rig Canada Inc.
|
Canada
|
Ocean Rig North Sea AS
|
Norway
|
Ocean Rig 1 Inc.
|
Marshall Islands
|
Ocean Rig 2 Inc.
|
Marshall Islands
|
Ocean Rig 1 Shareholders Inc.
|
Marshall Islands
|
Ocean Rig 2 Shareholders Inc.
|
Marshall Islands
|
Drill Rigs Holdings Inc.
|
Marshall Islands
|
Drillships Investment Inc.
|
Marshall Islands
|
Drillships Holdings Inc.
|
Marshall Islands
|
Kithira Shareholders Inc.
|
Marshall Islands
|
Skopelos Shareholders Inc.
|
Marshall Islands
|
Drillship Hydra Shareholders Inc.
|
Marshall Islands
|
Drillship Paros Shareholders Inc.
|
Marshall Islands
|
Ocean Rig Operations Inc.
|
Marshall Islands
|
Primelead Limited
|
Cyprus
|
Ocean Rig Black Sea Operations B.V.
|
The Netherlands
|
Ocean Rig Drilling Operations Cooperatief U.A.
|
The Netherlands
|
Ocean Rig Black Sea Cooperatief U.A
|
The Netherlands
|
Ocean Rig Deep Water Drilling Ltd.
|
Nigeria
|
Ocean Rig Drilling Operations B.V.
|
The Netherlands
|
Algarve Finance Ltd.
|
Marshall Islands
|
Alley Finance Co.
|
Marshall Islands
|
Drillship Skiathos Shareholders Inc.
|
Marshall Islands
|
Drillship Skyros Shareholders Inc.
|
Marshall Islands
|
Drillship Kythnos Shareholders Inc.
|
Marshall Islands
|
Drillship Skiathos Owners Inc.
|
Marshall Islands
|
Drillship Skyros Owners Inc.
|
Marshall Islands
|
Drillship Kythnos Owners Inc.
|
Marshall Islands
|
Ocean Rig 1 Greenland Operations Inc.
|
Marshall Islands
|
Ocean Rig Corcovado Greenland Operations Inc.
|
Marshall Islands
|
Ocean Rig Olympia Ghana Operations Limited
|
Ghana
|
Ocean Rig Poseidon Operations Inc. (formerly Tanzania Operations Inc.)
|
Marshall Islands
|
Ocean Rig Do Brasil Serviços De Petroleo Ltda.
|
Brazil
|
Ocean Rig Falkland Operations Inc.
|
Marshall Islands
|
Drill Rigs Operations Inc.
|
Marshall Islands
|
Ocean Rig Olympia Brasil Operations Cooperatief UA
|
The Netherlands
|
Ocean Rig Olympia Brasil Operations B.V.
|
The Netherlands
|
Drillships Holdings Operations Inc.
|
Marshall Islands
|
Drillships Investment Operations Inc.
|
Marshall Islands
|
Ocean Rig Rio de Janeiro Serviços de Petroleo Ltda.
|
Brazil
|
Ocean Rig Drilling Do Brasil Serviços de Petroleo Ltda.
|
Brazil
|
Ocean Rig Offshore Management Ltd.
|
Jersey
|
Ocean Rig Brasil Cooperatief UA
|
The Netherlands
|
Ocean Rig Brasil B.V.
|
The Netherlands
|
Ocean Rig Angola Operations Inc.
|
Marshall Islands
|
Ocean Rig EG Operations Inc.
|
Marshall Islands
|
Ocean Rig Norway Operations Inc.
|
Marshall Islands
|
Ocean Rig UDW LLC
|
Delaware
|
Ocean Rig Global Chartering Inc.
|
Marshall Islands
|
Ocean Rig Namibia Operations Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Operations Inc.
|
Marshall Islands
|
Ocean Rig Block 33 Brasil Cooperatief U.A.
|
Brazil
|
Ocean Rig Block 33 Brasil BV
|
Brazil
|
Ocean Rig Cuanza Operations Inc.
|
Marshall Islands
|
Olympia Rig Angola Holding, SA
|
Angola
|
Olympia Rig Angola, Limitada
|
Angola
|
Ocean Rig Liberia Operations Inc.
|
Marshall Islands
|
Ocean Rig West Africa Operations Inc.
|
Marshall Islands
|
Drillship Alonissos Owners Inc.
|
Marshall Islands
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
Eastern Med Consultants Inc.
|
Marshall Islands
|
Ocean Rig Management Inc.
|
Marshall Islands
|
Ocean Rig Cunene Operations Inc.
|
Marshall Islands
|
Ocean Rig Cubango Operations Inc.
|
Marshall Islands
|
Ocean Rig Gabon Operations Inc.
|
Marshall Islands
|
Ocean Rig Ireland Operations Inc.
|
Marshall Islands
|
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