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 ☒
|
International Financial Reporting Standards as issued
by the International Accounting Standards Board ☐
|
Other ☐
|
FORWARD-LOOKING STATEMENTS
|
1
|
|
PART I
|
1
|
|
Item 1.
|
Identity of Directors, Senior Management and Advisers
|
1
|
Item 2.
|
Offer Statistics and Expected Timetable
|
1
|
Item 3.
|
Key Information
|
1
|
Item 4.
|
Information on the Company
|
27
|
Item 4A.
|
Unresolved Staff Comments
|
37
|
Item 5.
|
Operating and Financial Review and Prospects
|
37
|
Item 6.
|
Directors, Senior Management and Employees
|
61
|
Item 7.
|
Major Shareholders and Related Party Transactions
|
68
|
Item 8.
|
Financial Information
|
71
|
Item 9.
|
The Offer and Listing
|
71
|
Item 10.
|
Additional Information
|
73
|
Item 11.
|
Quantitative and Qualitative Disclosures about Market Risk
|
79
|
Item 12.
|
Description of Securities Other than Equity Securities
|
80
|
PART II
|
80
|
|
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies
|
80
|
Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
80
|
Item 15.
|
Controls and Procedures
|
81
|
Item 16A.
|
Audit Committee Financial Expert
|
82
|
Item 16B.
|
Code of Ethics
|
82
|
Item 16C.
|
Principal Accountant Fees and Services
|
82
|
Item 16D
|
Exemptions from the Listing Standards for Audit Committees
|
82
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
82
|
Item 16F
|
Change in Registrant's Certifying Accountant
|
83
|
Item 16G.
|
Corporate Governance
|
83
|
Item 16H.
|
Mine Safety Disclosure
|
83
|
PART III
|
83
|
|
Item 17.
|
Financial Statements
|
83
|
Item 18.
|
Financial Statements
|
83
|
Item 19.
|
Exhibits
|
84
|
● | 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 drilling 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 UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
As of December 31,
|
|||||||||||||||||||
thousands)
|
2010
|
2011
|
2012
|
2013
|
2014
|
|||||||||||||||
Income statement data:
|
||||||||||||||||||||
Total revenues
|
405,712
|
699,649
|
941,903
|
1,180,250
|
1,817,077
|
|||||||||||||||
Drilling rigs and drillships operating expenses
|
119,369
|
281,833
|
563,583
|
504,957
|
727,832
|
|||||||||||||||
Loss on disposals
|
1,458
|
754
|
133
|
-
|
-
|
|||||||||||||||
Depreciation and amortization
|
75,092
|
162,532
|
224,479
|
235,473
|
324,302
|
|||||||||||||||
Legal settlements and other, net
|
-
|
-
|
4,524
|
6,000
|
(721
|
)
|
||||||||||||||
General and administrative expenses
|
20,566
|
46,718
|
83,647
|
126,868
|
131,745
|
|||||||||||||||
Total operating expenses
|
216,485
|
491,837
|
876,366
|
873,298
|
1,183,158
|
|||||||||||||||
Operating income
|
189,227
|
207,812
|
65,537
|
306,952
|
633,919
|
|||||||||||||||
Interest and finance costs
|
(8,418
|
)
|
(63,752
|
)
|
(116,427
|
)
|
(220,564
|
)
|
(300,131
|
)
|
||||||||||
Interest income
|
12,464
|
9,810
|
553
|
9,595
|
12,227
|
|||||||||||||||
Gain/(loss) on interest rate swaps
|
(40,303
|
)
|
(33,455
|
)
|
(36,974
|
)
|
8,616
|
(12,671
|
)
|
|||||||||||
Other income/(expense), net
|
2,227
|
2,311
|
(1,068
|
)
|
3,315
|
4,282
|
||||||||||||||
Total other expenses, net
|
(34,030
|
)
|
(85,086
|
)
|
(153,916
|
)
|
(199,038
|
)
|
(296,293
|
)
|
||||||||||
Income/(loss) before income taxes
|
155,197
|
122,726
|
(88,379
|
)
|
107,914
|
337,626
|
||||||||||||||
Income taxes
|
(20,436
|
)
|
(27,428
|
)
|
(43,957
|
)
|
(44,591
|
)
|
(77,823
|
)
|
||||||||||
Net income/(loss)
|
$
|
134,761
|
$
|
95,298
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
|||||||||
Net Income/(loss) attributable to common stockholders
|
$
|
134,761
|
$
|
95,298
|
$
|
(132,336
|
)
|
$
|
63,221
|
$
|
259,031
|
|||||||||
Earnings/(loss) per share attributable to common stockholders, basic and diluted
|
$
|
1.30
|
$
|
0.72
|
$
|
(1.00
|
)
|
$
|
0.48
|
$
|
1.96
|
|||||||||
Weighted average number of common shares, basic and diluted
|
103,908,279
|
131,696,928
|
131,696,935
|
131,727,504
|
131,837,227
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
As of December 31,
|
|||||||||||||||||||
thousands)
|
2010
|
2011
|
2012
|
2013
|
2014
|
|||||||||||||||
Balance sheet data:
|
||||||||||||||||||||
Cash and cash equivalents
|
95,707
|
250,878
|
317,366
|
605,467
|
528,933
|
|||||||||||||||
Other current assets
|
576,299
|
245,531
|
279,768
|
404,250
|
449,259
|
|||||||||||||||
Total current assets
|
672,006
|
496,409
|
597,134
|
1,009,717
|
978,192
|
|||||||||||||||
Drilling rigs, drillships, machinery and equipment, net
|
1,249,333
|
4,538,838
|
4,399,462
|
5,777,025
|
6,207,633
|
|||||||||||||||
Intangible assets, net
|
10,506
|
9,062
|
7,619
|
6,175
|
4,732
|
|||||||||||||||
Other non current assets
|
523,363
|
216,121
|
228,074
|
165,220
|
228,557
|
|||||||||||||||
Advances for drillships under construction and related costs
|
1,888,490
|
754,925
|
992,825
|
662,313
|
622,507
|
|||||||||||||||
Total assets
|
4,343,698
|
6,015,355
|
6,225,114
|
7,620,450
|
8,041,621
|
|||||||||||||||
Current liabilities, including current portion of long term debt, net of deferred financing costs
|
667,918
|
427,557
|
505,665
|
543,654
|
417,693
|
|||||||||||||||
Long term debt, net of current portion and deferred financing costs
|
696,986
|
2,525,599
|
2,683,630
|
3,907,835
|
4,352,592
|
|||||||||||||||
Other non current liabilities
|
97,712
|
63,743
|
127,304
|
189,118
|
105,060
|
|||||||||||||||
Total liabilities
|
1,462,616
|
3,016,899
|
3,316,599
|
4,640,607
|
4,875,345
|
|||||||||||||||
Number of shares
|
131,696,928
|
131,696,928
|
131,725,128
|
131,875,128
|
132,017,178
|
|||||||||||||||
Stockholders' equity
|
2,881,082
|
2,998,456
|
2,908,515
|
2,979,843
|
3,166,276
|
|||||||||||||||
Common Stock
|
1,317
|
1,317
|
1,317
|
1,319
|
1,320
|
|||||||||||||||
Dividends declared, per share
|
-
|
-
|
-
|
-
|
0.57
|
|||||||||||||||
Total liabilities and stockholders' equity
|
$
|
4,343,698
|
$
|
6,015,355
|
$
|
6,225,114
|
$
|
7,620,450
|
$
|
8,041,621
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
Year Ended December 31,
|
|||||||||||||||||||
thousands, except
|
||||||||||||||||||||
for operating data)
|
2010
|
2011
|
2012
|
2013
|
2014
|
|||||||||||||||
Cash flow data:
|
||||||||||||||||||||
Net cash provided by / (used in):
|
||||||||||||||||||||
Operating activities
|
$
|
221,798
|
$
|
270,662
|
$
|
278,303
|
$
|
333,008
|
$
|
469,817
|
||||||||||
Investing activities
|
(1,441,347
|
)
|
(1,561,501
|
)
|
(320,469
|
)
|
(1,144,230
|
)
|
(814,984
|
)
|
||||||||||
Financing activities
|
1,081,061
|
1,446,010
|
108,654
|
1,099,323
|
268,633
|
|||||||||||||||
Other financial data
|
||||||||||||||||||||
EBITDA (1)
|
226,243
|
339,200
|
251,974
|
554,356
|
949,832
|
|||||||||||||||
Cash paid for interest
|
43,203
|
32,164
|
73,219
|
113,337
|
212,014
|
|||||||||||||||
Capital expenditures
|
(711,856
|
)
|
(1,943,342
|
)
|
(310,054
|
)
|
(1,283,364
|
)
|
(748,981
|
)
|
||||||||||
Operating data, when on hire
|
||||||||||||||||||||
Operating units
|
2
|
6
|
6
|
8
|
9
|
Ocean Rig UDW Inc.
|
||||||||||||||||||||
(U.S. Dollars in
|
Year Ended December 31,
|
|||||||||||||||||||
thousands)
|
2010
|
2011
|
2012
|
2013
|
2014
|
|||||||||||||||
EBITDA reconciliation
|
||||||||||||||||||||
Net income / (loss)
|
$
|
134,761
|
$
|
95,298
|
$
|
(132,336
|
)
|
$
|
63,323
|
259,803
|
||||||||||
Add: Depreciation and amortization
|
75,092
|
162,532
|
224,479
|
235,473
|
324,302
|
|||||||||||||||
Add: Net interest expense / (income)
|
(4,046
|
)
|
53,942
|
115,874
|
210,969
|
287,904
|
||||||||||||||
Add: Income taxes
|
20,436
|
27,428
|
43,957
|
44,591
|
77,823
|
|||||||||||||||
EBITDA
|
$
|
226,243
|
$
|
339,200
|
$
|
251,974
|
$
|
554,356
|
949,832
|
● | 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. |
Drilling Unit
|
Year Built or
Scheduled
Delivery/
Generation
|
Water
Depth to the
Wellhead
(ft)
|
Drilling
Depth to the
Oil Field
(ft)
|
Customer
|
Expected Contract Term(1)
|
Average
Maximum
Dayrate
|
Drilling
Location
|
||||||||
Operating Drilling Rigs
|
|||||||||||||||
Leiv Eiriksson
|
2001/5th
|
10,000
|
30,000
|
Rig Management Norway AS(2)
|
Q2 2013–Q1 2016
|
$545,000
|
Norwegian Continental Shelf
|
||||||||
Eirik Raude
|
2002/5th
|
10,000
|
30,000
|
Premier Oil Exploration and Production Ltd.(3)
|
Q1 2015 – Q4 2015
|
$561,350
|
Falkland Islands
|
||||||||
Operating Drillships
|
|||||||||||||||
Ocean Rig Corcovado
|
2011/6th
|
10,000
|
40,000
|
Petroleo Brasileiro S.A.
|
Q2 2012–Q2 2015
|
$ 439,402
|
(4)
|
Brazil
|
|||||||
Petroleo Brasileiro S.A.
|
Q2 2015–Q2 2018
|
$523,306
|
(5)
|
Brazil
|
|||||||||||
Ocean Rig Olympia
|
2011/6th
|
10,000
|
40,000
|
Total E&P Angola
|
Q3 2012–Q3 2015(6)
|
$585,437
|
Angola
|
||||||||
ENI Angola S.p.A.(7)
|
Q4 2015-Q4 2015
|
$355,000
|
Angola
|
||||||||||||
Ocean Rig Poseidon
|
2011/6th
|
10,000
|
40,000
|
ENI Angola S.p.A.
|
Q2 2013–Q2 2016
|
$690,300
|
(8)
|
Angola
|
|||||||
ENI Angola S.p.A.(10)
|
Q2 2016-Q2 2017
|
$539,150
|
Angola
|
||||||||||||
Ocean Rig Mykonos
|
2011/6th
|
10,000
|
40,000
|
Petroleo Brasileiro S.A.
|
Q1 2012–Q1 2015
|
$ 433,044
|
(4)
|
Brazil
|
|||||||
Petroleo Brasileiro S.A.
|
Q1 2015–Q1 2018
|
$514,090
|
(5)
|
Brazil
|
|||||||||||
Ocean Rig Mylos
|
2013/7th
|
12,000
|
40,000
|
Repsol Sinopec Brasil S.A.
|
Q3 2013–Q3 2016
|
$637,270
|
(9)
|
Brazil
|
|||||||
Ocean Rig Skyros
|
2013/7th
|
12,000
|
40,000
|
ENI Angola S.p.A.(7)
|
Q2 2015-Q3 2015
|
$355,000
|
Nigeria, Angola
|
||||||||
Total E&P Angola
|
Q4 2015-Q3 2021
|
$592,834
|
Angola
|
||||||||||||
Ocean Rig Athena
|
2014/7th
|
12,000
|
40,000
|
ConocoPhillips Angola 36 & 37 Ltd
|
Q1 2014–Q2 2017
|
$662,523
|
(10)
|
Angola
|
|||||||
Ocean Rig Apollo
|
Q1 2015/7th
|
12,000
|
40,000
|
Total E&P Congo
|
Q1 2015-Q2 2018
|
$594,646
|
(11)
|
West Africa
|
|||||||
Newbuilding Drillships
|
|||||||||||||||
Ocean Rig Santorini
|
Q2 2016/7th
|
12,000
|
40,000
|
||||||||||||
Ocean Rig TBN#1
|
Q1 2017/7th
|
12,000
|
40,000
|
||||||||||||
Ocean Rig TBN#2
|
Q2 2017/7th
|
12,000
|
40,000
|
Year ended December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
Customer A
|
-
|
-
|
14
|
%
|
||||||||
Customer B
|
49
|
%
|
33
|
%
|
18
|
%
|
||||||
Customer C
|
18
|
%
|
-
|
-
|
||||||||
Customer D
|
12
|
%
|
-
|
-
|
||||||||
Customer E
|
-
|
13
|
%
|
12
|
%
|
|||||||
Customer F
|
-
|
18
|
%
|
30
|
%
|
|||||||
Customer G
|
-
|
12
|
%
|
14
|
%
|
● | 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. |
● | Economic utilization: We measure our revenue earning performance over a period as a percentage of the maximum revenues that we could earn under our drilling contracts in such period.More specifically, all drilling contracts provide for an operating or base rate that applies for the period during which the drillship is operational and at the client's drilling location.Furthermore,drilling contracts generally provide for a general repair allowance for preventive maintenance or repair of equipment;such allowance varies from contract to contract,and we may be compensated at the full operating dayrate or at a reduced operating day rate for such general repair allowance.Inaddition,drilling contracts typically provide for situations where the drillships would operate at reduced operating dayrates,such as, among other things:a standby rate,where the drillship is prevented from commencing operations for reasons such as bad weather,waiting for customer orders, waiting on other contractors; a moving rate, where the drillship is in transit betweenl ocations; a reduced performance rate in the eventofmajor equipment failure;or a force majeure rate in the event of a force majeure that causes the suspension of operations.At these instances we are compensated with a portion of the base rate. In addition there are circumstances that due to equipment failure or other events defined in our drilling contracts, we do not earn the base rate.. |
● | 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. |
Year Ended December 31, 2013
|
Year Ended December 31, 2014
|
Change
|
Percentage Change
|
|||||||||||||
REVENUES:
|
||||||||||||||||
Total revenues
|
1,180,250
|
1,817,077
|
636,827
|
54.0
|
%
|
|||||||||||
EXPENSES:
|
||||||||||||||||
Drilling rigs and drillships operating expenses
|
504,957
|
727,832
|
222,875
|
44.1
|
%
|
|||||||||||
Depreciation and amortization
|
235,473
|
324,302
|
88,829
|
37.7
|
%
|
|||||||||||
General and administrative expenses
|
126,868
|
131,745
|
4,877
|
3.8
|
%
|
|||||||||||
Legal settlements and other, net
|
6,000
|
(721
|
)
|
(6,721
|
)
|
(112.0
|
)%
|
|||||||||
Operating income
|
306,952
|
633,919
|
326,967
|
106.5
|
%
|
|||||||||||
OTHER INCOME/(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(220,564
|
)
|
(300,131
|
)
|
(79,567
|
)
|
36.1
|
%
|
||||||||
Interest income
|
9,595
|
12,227
|
2,632
|
27.4
|
%
|
|||||||||||
Gain/(Loss) on interest rate swaps
|
8,616
|
(12,671
|
)
|
(21,287
|
)
|
(247.1
|
)%
|
|||||||||
Other, net
|
3,315
|
4,282
|
967
|
29.2
|
%
|
|||||||||||
Total other expenses, net
|
(199,038
|
)
|
(296,293
|
)
|
(97,255
|
)
|
48.9
|
%
|
||||||||
Income before income taxes
|
107,914
|
337,626
|
229,712
|
212.9
|
%
|
|||||||||||
Income taxes
|
(44,591
|
)
|
(77,823
|
)
|
(33,232
|
)
|
74.5
|
%
|
||||||||
Net Income
|
63,323
|
259,803
|
196,480
|
310.3
|
%
|
Year Ended December 31, 2012
|
Year Ended December 31, 2013
|
Change
|
Percentage Change
|
|||||||||||||
REVENUES:
|
||||||||||||||||
Total revenues
|
941,903
|
1,180,250
|
238,347
|
25.3
|
%
|
|||||||||||
EXPENSES:
|
||||||||||||||||
Drilling rigs and drillships operating expenses
|
563,583
|
504,957
|
(58,626
|
)
|
(10.4
|
)%
|
||||||||||
Depreciation and amortization
|
224,479
|
235,473
|
10,994
|
4.9
|
%
|
|||||||||||
Loss on sale of assets
|
133
|
-
|
(133
|
)
|
(100.0
|
)%
|
||||||||||
General and administrative expenses
|
83,647
|
126,868
|
43,221
|
51.7
|
%
|
|||||||||||
Legal settlements and other, net
|
4,524
|
6,000
|
1,476
|
32.6
|
%
|
|||||||||||
Operating income
|
65,537
|
306,952
|
241,415
|
368.4
|
%
|
|||||||||||
OTHER INCOME/(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(116,427
|
)
|
(220,564
|
)
|
(104,137
|
)
|
89.4
|
%
|
||||||||
Interest income
|
553
|
9,595
|
9,042
|
1635.1
|
%
|
|||||||||||
Gain/(Loss) on interest rate swaps
|
(36,974
|
)
|
8,616
|
45,590
|
(123.3
|
)%
|
||||||||||
Other, net
|
(1,068
|
)
|
3,315
|
4,383
|
(410.4
|
)%
|
||||||||||
Total other expenses, net
|
(153,916
|
)
|
(199,038
|
)
|
(45,122
|
)
|
29.3
|
%
|
||||||||
Income/(loss) before income taxes
|
(88,379
|
)
|
107,914
|
196,293
|
(222.1
|
)%
|
||||||||||
Income taxes
|
(43,957
|
)
|
(44,591
|
)
|
634
|
(1.4
|
)%
|
|||||||||
Net Income/(Loss)
|
(132,336
|
)
|
63,323
|
195,659
|
(147.9
|
)%
|
(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 its registered 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 45634 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
December 31
|
||||||||
(U.S. Dollars in thousands)
|
2013
|
2014
|
||||||
Total revenue
|
407,633
|
427,703
|
||||||
EBITDA(1)
|
229,419
|
231,709
|
||||||
Total assets
|
1,366,349
|
1,254,454
|
||||||
Total debt, net of financing fees
|
(784,485
|
)
|
(788,224
|
)
|
||||
Shareholders' equity
|
(458,298
|
)
|
(384,938
|
)
|
||||
Total cash and cash equivalents
|
87,007
|
23,635
|
||||||
Capital expenditures (2)
|
(77,265
|
)
|
(13,674
|
)
|
(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 . 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. |
Year Ended
December 31
|
||||||||
(U.S. Dollars in thousands)
|
2013
|
2014
|
||||||
EBITDA reconciliation
|
||||||||
Net income
|
109,013
|
114,058
|
||||||
Interest and finance costs
|
56,673
|
89,031
|
||||||
Interest income
|
(12,556
|
)
|
(51,652
|
)
|
||||
Depreciation
|
72,110
|
77,158
|
||||||
Income taxes
|
4,179
|
3,114
|
||||||
EBITDA
|
229,419
|
231,709
|
||||||
For the Year Ended December 31, 2014
|
||||||||||||||||||||
(U.S. Dollars in thousands)
|
Issuer
|
Issuer
Subs
Guarantor
|
Non-guarantors
|
Ocean Rig 2 Inc./
Eirik Raude
|
Ocean Rig 1 Inc./
Leiv Eiriksson
|
|||||||||||||||
EBITDA reconciliation
|
||||||||||||||||||||
Net income
|
(68,848
|
)
|
182,906
|
145,745
|
109,319
|
75,030
|
||||||||||||||
Depreciation
|
84,836
|
4,195
|
211,100
|
31,714
|
43,892
|
|||||||||||||||
Interest and finance costs
|
(32,143
|
)
|
(19,509
|
)
|
39,425
|
2,482
|
1,717
|
|||||||||||||
Interest income
|
109
|
77,049
|
247,144
|
(13,120
|
)
|
(6,394
|
)
|
|||||||||||||
Income Taxes
|
3,114
|
74,709
|
109
|
3,005
|
||||||||||||||||
EBITDA(1)
|
(16,045
|
)
|
247,754
|
718,123
|
130,504
|
117,250
|
||||||||||||||
Year Ended
December 31
|
||||||||
(U.S. Dollars in thousands)
|
2013
|
2014
|
||||||
Total revenue
|
645,023
|
655,207
|
||||||
EBITDA(1)
|
378,969
|
353,917
|
||||||
Total assets
|
3,328,778
|
3,162,233
|
||||||
Total debt, net of financing fees
|
(1,839,171
|
)
|
(1,825,671
|
)
|
||||
Shareholders' equity
|
(1,325,114
|
)
|
(1,233,765
|
)
|
||||
Total cash and cash equivalents
|
26,274
|
24,554
|
||||||
Capital expenditures (2)
|
(25,413
|
)
|
(15,171
|
)
|
(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. 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. |
Year Ended
December 31
|
||||||||
(U.S. Dollars in thousands)
|
2013
|
2014
|
||||||
EBITDA reconciliation
|
||||||||
Net income
|
88,489
|
109,221
|
||||||
Net interest expense
|
114,114
|
62,321
|
||||||
Depreciation
|
149,491
|
158,512
|
||||||
Income taxes
|
26,875
|
23,863
|
||||||
EBITDA
|
378,969
|
353,917
|
Year Ended
December 31
|
||||||||
(U.S. Dollars in thousands)
|
2013
|
2014
|
||||||
Total revenue
|
36,806
|
552,205
|
||||||
EBITDA(1)
|
23,921
|
338,678
|
||||||
Total assets
|
2,043,068
|
2,335,554
|
||||||
Total debt, net of financing fees
|
(875,665
|
)
|
(1,266,342
|
)
|
||||
Shareholders' equity
|
(932,603
|
)
|
(896,357
|
)
|
||||
Total cash and cash equivalents
|
6,083
|
21,950
|
||||||
Capital expenditures (2)
|
(1,001,447
|
)
|
(389,532
|
)
|
(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. 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, payments made to yard for the drillships under construction and related construction expenses. |
Year Ended
December 31
|
||||||||
(U.S. Dollars in thousands)
|
2013
|
2014
|
||||||
EBITDA reconciliation
|
||||||||
Net income/(loss)
|
(22,732
|
)
|
81,237
|
|||||
Net interest expense
|
34,366
|
152,279
|
||||||
Depreciation
|
12,287
|
87,577
|
||||||
Income taxes
|
17,585
|
|||||||
EBITDA
|
23,921
|
338,678
|
||||||
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)
|
1,928,900
|
566,300
|
1,362,600
|
-
|
-
|
|||||||||||||||
Loan payments (2)
|
4,473,000
|
32,000
|
864,000
|
564,000
|
3,013,000
|
|||||||||||||||
Interest payments (3)
|
1,450,970
|
236,931
|
532,403
|
404,837
|
276,799
|
|||||||||||||||
Total
|
7,852,870
|
835,231
|
2,759,003
|
968,837
|
3,289,799
|
(1) | The figure includes contracted purchase obligations only. |
(2) | Includes $500 million in aggregate principal amount of 7.25% senior unsecured notes and $800 million in aggregate principal amount of 6.5% senior secured notes. |
(3) | Based on interest rates ranging from 5.5% to 7.25%. |
Directors and executive officers of Ocean Rig UDW Inc.(1)
|
||
Name
|
Age
|
Position
|
George Economou
|
62
|
Chairman of the Board, President, Chief Executive Officer and Class A Director
|
Kyros Melas
|
50
|
Class C Director
|
Savvas D. Georghiades
|
65
|
Class C Director
|
Prokopios (Akis) Tsirigakis
|
60
|
Class B Director
|
Anthony Kandylidis
|
37
|
Executive Vice President
|
Gilles Bocabarteille
|
47
|
Chief Operating Officer
|
John Liveris
|
63
|
Class B Director
|
Niki Fotiou
|
45
|
Vice President of Finance and Accounting
|
● | 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)
|
5,993,289
|
4.5
|
%
|
|||||
John Liveris
|
-
|
*
|
||||||
Savvas D. Georghiades
|
-
|
*
|
||||||
Prokopios (Akis) Tsirigakis
|
-
|
*
|
||||||
Anthony Kandylidis(4)
|
1,684,512
|
1.3
|
%
|
|||||
Gilles Bocabarteille
|
-
|
*
|
||||||
Executive Officers and Directors as a Group
|
7,683,661
|
5.8
|
%
|
|||||
5% Beneficial Owners:
|
||||||||
DryShips Inc.(5)
|
78,301,755
|
59.2
|
%
|
|||||
James D. Dondero (6)
|
7,480,667
|
5.7
|
%
|
(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 132,317,128 shares outstanding as of February18, 2015. |
(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 600,000 of these shares through Azara Services S.A., 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 1,570,226 of these shares through Steel Wheel Investments Limited, a Marshall Islands corporation controlled by Mr. Kandylidis. Mr. Kandylidis, , may be deemed to beneficially own 114,286 of these shares through Basset Holdings Inc., 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 109 Kifisias Avenue and Sina Street, GR 15124 Amaroussion, Greece.As of February 18, 2015, DryShips pledged 53,129,069 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, 2011
|
$
|
11.96
|
(3)
|
$
|
16.50
|
(3)
|
72.00
|
125.00
|
||||||||
December 31, 2012
|
11.75
|
18.17
|
73.00
|
102.00
|
||||||||||||
December 31, 2013
|
13.76
|
20.83
|
89.03
|
124.00
|
||||||||||||
December 31, 2014
|
8.50
|
19.87
|
124.00
|
124.00
|
||||||||||||
For the Quarter Ended
|
||||||||||||||||
March 31, 2013
|
13.76
|
17.71
|
82.00
|
82.00
|
||||||||||||
June 30, 2013
|
15.14
|
18.73
|
89.03
|
100.00
|
||||||||||||
September 30, 2013
|
16.96
|
18.85
|
100.50
|
112.00
|
||||||||||||
December 31, 2013
|
17.53
|
20.83
|
105.00
|
124.00
|
||||||||||||
March 31, 2014
|
16.51
|
19.36
|
(4
|
)
|
(4
|
)
|
||||||||||
June 30, 2014
|
16.34
|
19.87
|
124.00
|
124.00
|
||||||||||||
September 30, 2014
|
16.12
|
19.11
|
(4
|
)
|
(4
|
)
|
||||||||||
December 31, 2014
|
8.50
|
15.56
|
(4
|
)
|
(4
|
)
|
For the Month Ended
|
||||||||||||||||
August 2014
|
17.25
|
19.11
|
(4
|
)
|
(4
|
)
|
||||||||||
September 2014
|
16.12
|
18.56
|
(4
|
)
|
(4
|
)
|
||||||||||
October 2014
|
12.53
|
15.56
|
(4
|
)
|
(4
|
)
|
||||||||||
November 2014
|
11.99
|
13.87
|
(4
|
)
|
(4
|
)
|
||||||||||
December 2014
|
8.50
|
11.69
|
(4
|
)
|
(4
|
)
|
||||||||||
January 2015
|
7.46
|
9.42
|
(4 | ) | (4 | ) | ||||||||||
February 2015
|
7.60
|
9.29
|
(4 | ) | (4 | ) | ||||||||||
March 2015 (through March 4, 2015) | 7.82 | 7.95 | (4 | ) | (4 | ) |
(1) | As reported in Norwegian Kroner. As of February 18, 2015, the U.S. Dollar/Norwegian Kroner exchange rate was $1.00/NOK 7.52. |
(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) | 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. |
2013
|
2014
|
|||||||
(U.S. Dollars in thousands)
|
||||||||
Audit and audit-related fees
|
$
|
1,130
|
$
|
1,229 | ||||
Tax fees
|
133
|
46 | ||||||
Total fees
|
$
|
1,263
|
$
|
1,275 |
● | 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 incorporated by reference to exhibit 2.4 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
2.5
|
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 incorporated by reference to exhibit 2.5 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
2.6
|
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 incorporated by reference to exhibit 2.6 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
2.7
|
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 incorporated by reference to exhibit 2.7 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.1
|
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 incorporated by reference to exhibit 4.5 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.6
|
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 incorporated by reference to exhibit 4.6 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.7
|
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 incorporated by reference to exhibit 4.8 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.9
|
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 incorporated by reference to exhibit 4.9 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.10
|
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 incorporated by reference to exhibit 4.31 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.32
|
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 incorporated by reference to exhibit 4.32 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.33
|
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 incorporated by reference to exhibit 4.33 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.34
|
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 incorporated by reference to exhibit 4.34 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.35
|
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 incorporated by reference to exhibit 4.35 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.36
|
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 incorporated by reference to exhibit 4.36 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.37
|
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 incorporated by reference to exhibit 4.38 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.39
|
Services Agreement, effective January 1, 2013, by and between Ocean Rig Management Inc. and Cardiff Drilling Inc incorporated by reference to exhibit 4.39 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.40
|
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 incorporated by reference to exhibit 4.41 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.42
|
Consultancy Agreement, effective January 1, 2013, by and between Ocean Rig Management Inc. and Vivid Finance Limited incorporated by reference to exhibit 4.42 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.43
|
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 incorporated by reference to exhibit 4.43 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.44
|
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 incorporated by reference to exhibit 4.44 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.45
|
Waiver Letter, dated May 27, 2013, relating to the 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, incorporated by reference to exhibit 4.45 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014 .
|
4.46
|
Waiver Letter, dated June 25, 2013, relating to a Senior Secured Credit Facility Agreement, dated April 15, 2011, by and among Drillships Holdings Inc., as Borrower, the banks and financial institutions named therein, as Mandated Lead Arrangers and Lenders, and Nordea Bank Finland plc, London Branch, as Agent, relating to a credit facility of $800,000,000, incorporated by reference to exhibit 4.46 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.47
|
Credit Agreement, dated July 12, 2013, by and among Drillships Finance Holding Inc., as Borrower, Ocean Rig UDW Inc., as Parent, Deutsche Bank AG New York Branch, as Administrative Agent and the companies listed therein, and the banks and financial institutions named therein, as Joint Global Coordinators, Joint Lead Arrangers and Joint Bookrunners and the banks and financial institutions named therein, as Joint Lead Arrangers and Joint Bookrunners, relating to a combined $1.8 billion of Tranche B-1 and Tranche B-2 Term Loans, incorporated by reference to exhibit 4.47 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.48
|
Incremental Amendment, dated July 26, 2013, by and among Drillships Finance Holding Inc., as Borrower, Ocean Rig UDW Inc., as Parent, Deutsche Bank AG New York Branch, as Administrative Agent under the Credit Agreement, dated July 12, 2013 (the "July 12, 2013, Credit Agreement"), and the Incremental Lenders, as defined therein, relating to an increase of $100,000,000 under the July 12, 2013 Credit Agreement, incorporated by reference to exhibit 4.48 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.49
|
Amending and Restating Agreement, dated August 30, 2013, relating to the Facilities Agreement 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 dated February 28, 2013, incorporated by reference to exhibit 4.49 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.50
|
Amendment Number 2 to Uncertificated Securities Control Agreement, dated as of September 27, 2012, as amended among DryShips Inc., HSH Nordbank AG and Ocean Rig UDW Inc., dated September 9, 2013, incorporated by reference to exhibit 4.50 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.51
|
Amendment Number 3 to Uncertificated Securities Control Agreement, dated as of September 27, 2012, as amended, among DryShips Inc., HSH Nordbank AG and Ocean Rig UDW Inc., dated November 14, 2013, incorporated by reference to exhibit 4.51 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.52
|
Consultancy Agreement, dated September 9, 2013, by and between Eastern Med Consultants Inc., an indirect wholly owned subsidiary of Ocean Rig UDW Inc., and Azara Services S.A, incorporated by reference to exhibit 4.52 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.53
|
Supplemental Letter dated December 10, 2013, relating to the Facilities Agreement 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 originally dated February 28, 2013, incorporated by reference to exhibit 4.53 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.54
|
Amendment and Restatement Agreement dated as of February 7, 2014 relating to the Credit Agreement, dated July 12, 2013, as amended by the Incremental Agreement dated July 26, 2013, by and among Drillships Finance Holding Inc., as Borrower, Ocean Rig UDW Inc., as Parent, Deutsche Bank AG New York Branch, as Administrative Agent and the companies listed therein, and the banks and financial institutions named therein, relating to a re-financing of the combined $1.9 billion of Tranche B-1 and Tranche B-2 Term Loans, incorporated by reference to exhibit 4.54 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2013, filed with the SEC on February 21, 2014.
|
4.55
|
Indenture, dated as of March 26, 2014, by and between Ocean Rig UDW Inc., as the Issuer, and Deutsche Bank Trust Company Americas, as Trustee, relating to 7.25% Senior Notes Due 2019.
|
4.56
|
Credit Agreement, dated July 25, 2014, by and among Drillships Ventures Projects Inc., as Finco, Drillships Ocean Ventures Inc., as Borrower, Ocean Rig UDW, as Parent, various lenders, Deutsche Bank AG New York Branch, as Administrative Agent and Pari Passu Collateral Agent and the other entities listed therein, relating to a Term Loan in an aggregate principal amount equal to $1.3 billion.
|
4.57
|
Pledge and Security Agreement, dated July 25, 2014, relating to the Credit Agreement dated July 25, 2014, by and among Ocean Rig UDW Inc., Drillships Ocean Ventures, Inc., Drillships Ventures Projects Inc., the subsidiaries identified therein, and Deutsche Bank AG New York Branch, as Pari Passu Collateral Agent.
|
4.58
|
Facilities Agreement, dated February 13, 2015, by and among Drillship Alonissos Shareholders Inc., as Borrower, Ocean Rig UDW Inc., as Parent and Guarantor, Drillship Alonissos Owners Inc., as Drillship Owner and Guarantor, and the other entities named therein, relating to $475 million Term Loan Facilities.
|
4.59
|
Management Agreement, dated December 13, 2013, by and between Drillship Skyros Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.60
|
Management Agreement, dated February 25, 2014, by and between Drillship Kythnos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.61
|
Management Agreement, dated April 17, 2014, by and between Drillship Hydra Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.62
|
Management Agreement, dated April 17, 2014, by and between Drillship Kithira Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.63
|
Management Agreement, dated April 17, 2014, by and between Drillship Paros Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.64
|
Management Agreement, dated April 17, 2014, by and between Ocean Rig 1 Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.65
|
Management Agreement, dated April 17, 2014, by and between Ocean Rig 2 Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.66
|
Management Agreement, dated April 17, 2014, by and between Drillship Skiathos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.67
|
Management Agreement, dated April 17, 2014, by and between Drillship Skopelos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager.
|
4.68 | Management Agreement, dated February 17, 2015, by and between Drillship Alonissos Owners Inc., as the Owner, and Ocean Rig Management Inc., as the Manager. |
4.69
|
Exchangeable Promissory Note, dated November 18, 2014, by and between DryShips, Inc., as Borrower, and Alley Finance Co., or its permitted assigns, as Noteholder, relating to a $120,000,000 loan.
|
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.
|
101
|
The following financial information from Ocean Rig UDW Inc.'s Annual Report on Form 20-F for the fiscal year ended December 31, 2014, formatted in Extensible Business Reporting Language (XBRL):
(1) Consolidated Balance Sheets as of December 31, 2013 and 2014;
(2) Consolidated Statements of Operations for the years ended December 31, 2012, 2013 and 2014;
(3) Consolidated Statements of Comprehensive Income for the years ended December 31, 2012, 2013 and 2014;
(4) Consolidated Statements of Stockholders' Equity for the years ended December 31, 2012, 2013 and 2014;
(5) Consolidated Statements of Cash Flows for the years ended December 31, 2012, 2013 and 2014; and
(6) Notes to Consolidated Financial Statements.
|
OCEAN RIG UDW INC.
|
||
By:
|
/s/ Niki Fotiou
|
|
Name:
|
Niki Fotiou
|
|
Title:
|
Vice President of Finance and Accounting
|
|
Page
|
|
Report of Independent Registered Public Accounting Firm
|
F-2
|
Report of Independent Registered Public Accounting Firm
|
F-3
|
Consolidated Balance Sheets as of December 31, 2013 and 2014
|
F-4
|
Consolidated Statements of Operations for the years ended December 31, 2012, 2013 and 2014
|
F-5
|
Consolidated Statements of Comprehensive Income/(Loss) for the years ended December 31, 2012, 2013 and 2014
|
F-6
|
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2012, 2013 and 2014
|
F-7
|
Consolidated Statements of Cash Flows for the years ended December 31, 2012, 2013 and 2014
|
F-8
|
Notes to Consolidated Financial Statements
|
F-9
|
December 31, 2013
|
December 31, 2014
|
|||||||
ASSETS
|
||||||||
CURRENT ASSETS:
|
||||||||
Cash and cash equivalents
|
$
|
605,467
|
$
|
528,933
|
||||
Restricted cash (Note 2)
|
3,561
|
2,564
|
||||||
Trade accounts receivable, net of allowance for doubtful receivables of $2,948 and $2,825 at December 31, 2013 and 2014, respectively
|
289,718
|
345,187
|
||||||
Other current assets (Note 4)
|
110,971
|
101,508
|
||||||
Total current assets
|
1,009,717
|
978,192
|
||||||
FIXED ASSETS, NET:
|
||||||||
Advances for drillships under construction and related costs (Note 5)
|
662,313
|
622,507
|
||||||
Drilling rigs, drillships, machinery and equipment, net (Note 6)
|
5,777,025
|
6,207,633
|
||||||
Total fixed assets, net
|
6,439,338
|
6,830,140
|
||||||
OTHER NON-CURRENT ASSETS:
|
||||||||
Restricted cash (Note 2)
|
50,000
|
-
|
||||||
Financial instruments (Note 9)
|
13,517
|
10,101
|
||||||
Due from a related party (Note 3)
|
-
|
117,219
|
||||||
Other non-current assets (Note 7)
|
107,878
|
105,969
|
||||||
Total non-current assets, net
|
171,395
|
233,289
|
||||||
Total assets
|
$
|
7,620,450
|
$
|
8,041,621
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
CURRENT LIABILITIES:
|
||||||||
Current portion of long-term debt, net of deferred financing costs (Note 8)
|
$
|
85,401
|
$
|
19,858
|
||||
Due to related parties (Note 3)
|
-
|
11,287
|
||||||
Accounts payable and other current liabilities
|
89,988
|
72,030
|
||||||
Accrued liabilities
|
214,137
|
175,058
|
||||||
Deferred revenue
|
123,862
|
121,579
|
||||||
Financial instruments (Note 9)
|
30,266
|
17,881
|
||||||
Total current liabilities
|
543,654
|
417,693
|
||||||
NON-CURRENT LIABILITIES
|
||||||||
Long term debt, net of current portion and deferred financing costs (Note 8)
|
3,907,835
|
4,352,592
|
||||||
Financial instruments (Note 9)
|
15,557
|
8,617
|
||||||
Deferred revenue
|
152,226
|
81,359
|
||||||
Other non-current liabilities
|
21,335
|
15,084
|
||||||
Total non-current liabilities
|
4,096,953
|
4,457,652
|
||||||
COMMITMENTS AND CONTINGENCIES (Note 16)
|
-
|
-
|
||||||
STOCKHOLDERS' EQUITY:
|
||||||||
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2013 and 2014, nil issued and outstanding at December 31, 2013 and 2014, respectively
|
-
|
-
|
||||||
Common stock, $0.01par value; 1,000,000,000 shares authorized, at December 31, 2013 and 2014, 131,875,128 and 132,017,178 issued and outstanding at December 31, 2013 and 2014, respectively (Note 10)
|
1,319
|
1,320
|
||||||
Additional paid-in capital
|
3,492,650
|
3,494,957
|
||||||
Accumulated other comprehensive loss (Note 11)
|
(23,454
|
)
|
(23,938
|
)
|
||||
Accumulated deficit
|
(490,672
|
)
|
(306,063
|
)
|
||||
Total stockholders' equity
|
2,979,843
|
3,166,276
|
||||||
Total liabilities and stockholders' equity
|
$
|
7,620,450
|
$
|
8,041,621
|
Year Ended December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
REVENUES:
|
||||||||||||
Service revenue, net
|
$
|
941,903
|
$
|
1,180,250
|
$
|
1,817,077
|
||||||
Total Revenues
|
941,903
|
1,180,250
|
1,817,077
|
|||||||||
EXPENSES:
|
||||||||||||
Drilling rigs and drillships operating expenses
|
563,583
|
504,957
|
727,832
|
|||||||||
Depreciation and amortization
|
224,479
|
235,473
|
324,302
|
|||||||||
Loss on sale of assets
|
133
|
-
|
-
|
|||||||||
General and administrative expenses
|
83,647
|
126,868
|
131,745
|
|||||||||
Legal settlements and other, net (Note 16)
|
4,524
|
6,000
|
(721
|
)
|
||||||||
Operating income
|
65,537
|
306,952
|
633,919
|
|||||||||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs (includes ($22,904) accumulated other comprehensive reclassifications in 2012 for losses on previously designated cash flow hedges) (Note 12)
|
(116,427
|
)
|
(220,564
|
)
|
(300,131
|
)
|
||||||
Interest income (Note 3)
|
553
|
9,595
|
12,227
|
|||||||||
Gain/ (Loss) on interest rate swaps (Note 9)
|
(36,974
|
)
|
8,616
|
(12,671
|
)
|
|||||||
Other, net
|
(1,068
|
)
|
3,315
|
4,282
|
||||||||
Total other expenses, net
|
(153,916
|
)
|
(199,038
|
)
|
(296,293
|
)
|
||||||
INCOME / (LOSS) BEFORE INCOME TAXES
|
(88,379
|
)
|
107,914
|
337,626
|
||||||||
Income taxes (Note 13)
|
(43,957
|
)
|
(44,591
|
)
|
(77,823
|
)
|
||||||
NET INCOME / (LOSS)
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
|||||
NET INCOME / (LOSS) TO COMMON STOCKHOLDERS (Note 14)
|
$
|
(132,336
|
)
|
$
|
63,221
|
$
|
259,031
|
|||||
EARNINGS/ (LOSS) PER SHARE TO COMMON STOCKHOLDERS, BASIC AND DILUTED (Note 14)
|
$
|
(1.00
|
)
|
$
|
0.48
|
$
|
1.96
|
|||||
WEIGHTED AVERAGE NUMBER OF COMMON SHARES, BASIC AND DILUTED (Note 14)
|
131,696,935
|
131,727,504
|
131,837,227
|
Year Ended December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
Net income / (Loss)
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
|||||
Other Comprehensive income / (loss):
|
||||||||||||
Reclassification of realized losses associated with capitalized interest to depreciation and amortization
|
1,034
|
1,036
|
1,034
|
|||||||||
Reclassification of losses on previously designated cash flow hedges to interest and finance costs
|
22,904
|
-
|
-
|
|||||||||
Actuarial gains/ (losses)
|
(637
|
)
|
3,335
|
(1,518
|
)
|
|||||||
Other Comprehensive income/ (loss)
|
23,301
|
4,371
|
(484
|
)
|
||||||||
Total Comprehensive income / (loss) attributable to Ocean Rig UDW Inc.
|
$
|
(109,035
|
)
|
$
|
67,694
|
$
|
259,319
|
|||||
Common Stock
|
||||||||||||||||||||||||
Shares
|
Par Value
|
Additional Paid-in Capital
|
Accumulated
Other Comprehensive Loss
|
Accumulated Deficit
|
Total Stockholders' Equity
|
|||||||||||||||||||
BALANCE, January 1, 2012
|
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
|
|||||||||||
Net income
|
-
|
-
|
-
|
-
|
63,323
|
63,323
|
||||||||||||||||||
Issuance of non-vested shares
|
150,000
|
2
|
(2
|
)
|
-
|
-
|
-
|
|||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
3,634
|
-
|
-
|
3,634
|
||||||||||||||||||
Other comprehensive income
|
-
|
-
|
-
|
4,371
|
-
|
4,371
|
||||||||||||||||||
BALANCE, December 31, 2013
|
131,875,128
|
$
|
1,319
|
$
|
3,492,650
|
$
|
(23,454
|
)
|
$
|
(490,672
|
)
|
$
|
2,979,843
|
|||||||||||
Net income
|
-
|
-
|
-
|
-
|
259,803
|
259,803
|
||||||||||||||||||
Issuance of non-vested shares
|
157,500
|
1
|
(1
|
)
|
-
|
-
|
-
|
|||||||||||||||||
Cancellation of previously issued vested shares
|
(15,450
|
)
|
-
|
-
|
||||||||||||||||||||
Amortization of stock based compensation
|
-
|
-
|
3,576
|
-
|
-
|
3,576
|
||||||||||||||||||
Establishment costs for issuance of subsidiaries shares
|
-
|
-
|
(1,268
|
)
|
-
|
-
|
(1,268
|
)
|
||||||||||||||||
Dividends declared and paid
|
-
|
-
|
-
|
-
|
(75,194
|
)
|
(75,194
|
)
|
||||||||||||||||
Other comprehensive loss
|
-
|
-
|
-
|
(484
|
)
|
-
|
(484
|
)
|
||||||||||||||||
BALANCE, December 31, 2014
|
132,017,178
|
$
|
1,320
|
$
|
3,494,957
|
$
|
(23,938
|
)
|
$
|
(306,063
|
)
|
$
|
3,166,276
|
Years ended December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
Cash Flows from Operating Activities:
|
||||||||||||
Net income/(loss)
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
|||||
Adjustments to reconcile net income/(loss) to net cash provided by operating activities:
|
||||||||||||
Depreciation and amortization
|
224,479
|
235,473
|
324,302
|
|||||||||
Loss on sale of assets
|
133
|
-
|
-
|
|||||||||
Amortization and write-off of financing fees
|
12,944
|
38,797
|
42,995
|
|||||||||
Amortization income of deferred financing fees
|
-
|
-
|
(219
|
)
|
||||||||
Amortization of cash flow hedge reserve
|
22,904
|
-
|
-
|
|||||||||
Change in fair value of derivatives
|
(16,063
|
)
|
(44,383
|
)
|
(15,909
|
)
|
||||||
Amortization of stock based compensation
|
613
|
3,634
|
3,576
|
|||||||||
Other non cash items
|
16,961
|
-
|
-
|
|||||||||
Changes in operating assets and liabilities:
|
||||||||||||
Trade accounts receivable
|
(24,040
|
)
|
(141,842
|
)
|
(55,469
|
)
|
||||||
Other current and non-current assets
|
(56,938
|
)
|
(41,318
|
)
|
38,460
|
|||||||
Due to related parties
|
-
|
-
|
11,287
|
|||||||||
Accounts payable and other current and non-current liabilities
|
46,741
|
27,435
|
(25,728
|
)
|
||||||||
Accrued liabilities
|
52,253
|
57,251
|
(40,131
|
)
|
||||||||
Deferred revenue
|
97,552
|
134,638
|
(73,150
|
)
|
||||||||
Security deposits for derivatives
|
33,100
|
-
|
-
|
|||||||||
Net Cash Provided by Operating Activities
|
278,303
|
333,008
|
469,817
|
|||||||||
Cash Flows from Investing Activities:
|
||||||||||||
Loan to parent
|
-
|
-
|
(120,000
|
)
|
||||||||
Proceeds from arrangement fees
|
3,000
|
|||||||||||
Advances for drillships under construction and related costs
|
(212,185
|
)
|
(232,834
|
)
|
(292,984
|
)
|
||||||
Drilling rigs, drillships machinery, equipment and other improvements/ upgrades
|
(97,869
|
)
|
(1,050,530
|
)
|
(455,997
|
)
|
||||||
Proceeds from sale of assets
|
180
|
-
|
-
|
|||||||||
(Increase) / decrease in restricted cash
|
(10,595
|
)
|
139,134
|
50,997
|
||||||||
Net Cash Used in Investing Activities
|
(320,469
|
)
|
(1,144,230
|
)
|
(814,984
|
)
|
||||||
Cash Flows from Financing Activities:
|
||||||||||||
Proceeds from short/long-term credit facilities, terms loans and senior notes
|
800,000
|
2,800,000
|
2,250,000
|
|||||||||
Principal payments and repayments of short/long-term debt
|
(671,667
|
)
|
(1,622,250
|
)
|
(1,862,250
|
)
|
||||||
Dividends paid
|
-
|
-
|
(75,194
|
)
|
||||||||
Payments for issuance of subsidiaries shares
|
-
|
-
|
(466
|
)
|
||||||||
Payment of financing costs, net
|
(19,679
|
)
|
(78,427
|
)
|
(43,457
|
)
|
||||||
Net Cash Provided by Financing Activities
|
108,654
|
1,099,323
|
268,633
|
|||||||||
Net increase/(decrease) in cash and cash equivalents
|
66,488
|
288,101
|
(76,534
|
)
|
||||||||
Cash and cash equivalents at beginning of year
|
250,878
|
317,366
|
605,467
|
|||||||||
Cash and cash equivalents at end of year
|
$
|
317,366
|
$
|
605,467
|
$
|
528,933
|
||||||
SUPPLEMENTAL CASH FLOW INFORMATION:
|
||||||||||||
Cash paid during the years for:
|
||||||||||||
Interest, net of amount capitalized
|
73,219
|
113,337
|
212,014
|
|||||||||
Income taxes
|
45,450
|
50,392
|
60,374
|
|||||||||
Non cash financing and investing activities:
|
||||||||||||
Issuance of non-vested shares
|
-
|
2
|
1
|
Year ended December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
Customer A
|
-
|
-
|
14
|
%
|
||||||||
Customer B
|
49
|
%
|
33
|
%
|
18
|
%
|
||||||
Customer C
|
18
|
%
|
-
|
-
|
||||||||
Customer D
|
12
|
%
|
-
|
-
|
||||||||
Customer E
|
-
|
13
|
%
|
12
|
%
|
|||||||
Customer F
|
-
|
18
|
%
|
30
|
%
|
|||||||
Customer G
|
-
|
12
|
%
|
14
|
%
|
(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, 2013 and 2014, the Company consolidated 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, 2013, were $35,782 and $56,556, respectively, while total liabilities exceeded total assets by $20,774. The VIE's total assets and liabilities, as of December 31, 2014, were $64,314 and $65,358, respectively, while total liabilities exceeded total assets by $1,044. 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 on consolidation. |
Year ended December 31,
|
||||||||
2013
|
2014
|
|||||||
Balance Sheet
|
||||||||
Due from a related party – Dryships Inc.
|
-
|
117,219
|
||||||
Due from related party - Total
|
-
|
117,219
|
||||||
Due to related parties – Cardiff Drilling Inc.
|
-
|
4,287
|
||||||
Due to related parties – Azara Services S.A.
|
-
|
4,000
|
||||||
Due to related parties – Basset Holding Inc.
|
-
|
3,000
|
||||||
Due to related parties - Total
|
-
|
11,287
|
||||||
Advances for drillships under construction and related costs
|
$
|
1,185
|
$
|
1,546
|
||||
Drilling rigs, drillships, machinery and equipment, net
|
$
|
5,692
|
$
|
2,885
|
Year ended December 31,
|
||||||||||||
Statement of Operations
|
2012
|
2013
|
2014
|
|||||||||
Service Revenue, net - Cardiff Marine Inc.
|
$
|
6,193
|
$
|
-
|
$
|
-
|
||||||
Service Revenue, net - Cardiff Drilling Inc.
|
-
|
10,786
|
16,826
|
|||||||||
General and administrative expenses:
|
||||||||||||
-Vivid Finance Limited
|
10,768
|
16,623
|
13,153
|
|||||||||
-Azara Services S.A.
|
-
|
5,000
|
9,000
|
|||||||||
-Basset Holding Inc.
|
2,676
|
4,200
|
8,191
|
|||||||||
-Amortization of CEO's stock based compensation
|
-
|
1,358
|
2,316
|
|||||||||
Interest income – Dryships Inc
|
$
|
-
|
$
|
-
|
$
|
1,164
|
December 31,
|
||||||||
2013
|
2014
|
|||||||
Inventories
|
$
|
8,616
|
$
|
6,609
|
||||
Deferred mobilization expenses
|
76,986
|
66,169
|
||||||
Prepayments and advances
|
10,980
|
22,880
|
||||||
Other
|
14,389
|
5,850
|
||||||
Total
|
$
|
110,971
|
$
|
101,508
|
December 31,
|
||||||||
2013
|
2014
|
|||||||
Balance at beginning of year
|
$
|
992,825
|
$
|
662,313
|
||||
Advances for drillships under construction and related costs
|
1,112,237
|
688,832
|
||||||
Drillships delivered
|
(1,442,749
|
)
|
(728,638
|
)
|
||||
Balance at end of year
|
$
|
662,313
|
$
|
622,507
|
Cost
|
Accumulated
Depreciation
|
Net Book
Value
|
||||||||||
Balance December 31, 2012
|
$
|
4,968,397
|
(568,935
|
)
|
$
|
4,399,462
|
||||||
Additions/ Transfer from drillships under construction
|
1,610,543
|
-
|
1,610,543
|
|||||||||
Depreciation
|
-
|
(232,980
|
)
|
(232,980
|
)
|
|||||||
Balance December 31, 2013
|
$
|
6,578,940
|
(801,915
|
)
|
$
|
5,777,025
|
||||||
Additions/ Transfer from drillships under construction
|
752,432
|
-
|
752,432
|
|||||||||
Depreciation
|
-
|
(321,824
|
)
|
(321,824
|
)
|
|||||||
Balance December 31, 2014
|
$
|
7,331,372
|
$
|
(1,123,739
|
)
|
$
|
6,207,633
|
December 31,
|
||||||||
2013
|
2014
|
|||||||
Deferred mobilization expenses
|
$
|
72,624
|
$
|
43,327
|
||||
Intangible assets, net
|
6,175
|
4,732
|
||||||
Other
|
29,079
|
57,910
|
||||||
Total
|
$
|
107,878
|
$
|
105,969
|
December 31,
2013
|
December 31,
2014
|
|||||||
$1.3 billion Senior Secured Term Loan B Facility
|
$
|
-
|
$
|
1,296,750
|
||||
$1.9 billion Term Loan B Facility
|
1,895,250
|
1,876,250
|
||||||
$1.35 billion Senior Secured Credit Facility
|
890,000
|
-
|
||||||
9.5% Senior Unsecured Notes
|
500,000
|
-
|
||||||
7.25% Senior Unsecured Notes
|
-
|
500,000
|
||||||
6.5% Senior Secured Notes
|
800,000
|
800,000
|
||||||
Less: Deferred financing costs
|
(92,014
|
)
|
(100,550
|
)
|
||||
Total debt
|
3,993,236
|
4,372,450
|
||||||
Less: Current portion
|
(85,401
|
)
|
(19,858
|
)
|
||||
Long-term portion
|
$
|
3,907,835
|
$
|
4,352,592
|
Loan
|
Loan Agreement Date
|
Original
Amount
|
December 31,
2013
|
New
Loans
|
Repayments
|
December 31,
2014
|
||||||||||||||||
Senior Unsecured Notes
|
April 14, 2011
|
500,000
|
500,000
|
-
|
(500,000
|
)
|
-
|
|||||||||||||||
Drill Rigs Senior Notes
|
September 20, 2012
|
800,000
|
800,000
|
-
|
-
|
800,000
|
||||||||||||||||
Secured Credit Facility
|
February 28, 2013
|
1,350,000
|
890,000
|
450,000
|
(1,340,000
|
)
|
-
|
|||||||||||||||
Term Loan B Facility
|
July 12, 2013
|
1,900,000
|
1,895,250
|
-
|
(19,000
|
)
|
1,876,250
|
|||||||||||||||
7.25% Senior Unsecured Notes
|
March 26, 2014
|
500,000
|
-
|
500,000
|
-
|
500,000
|
||||||||||||||||
New Term Loan B Facility
|
July 25, 2014
|
$
|
1,300,000
|
$
|
-
|
$
|
1,300,000
|
$
|
(3,250
|
)
|
$
|
1,296,750
|
||||||||||
$
|
4,085,250
|
$
|
2,250,000
|
$
|
(1,862,250
|
)
|
$
|
4,473,000
|
2015
|
$
|
32,000
|
||
2016
|
32,000
|
|||
2017
|
832,000
|
|||
2018
|
32,000
|
|||
2019
|
532,000
|
|||
2020 and thereafter
|
3,013,000
|
|||
Total principal payments
|
4,473,000
|
|||
Less: Financing fees
|
(100,550
|
)
|
||
Total debt
|
$
|
4,372,450
|
Derivatives not designated
as Hedging Instruments
|
Balance Sheet Location
|
December 31, 2013
Fair value
|
December 31, 2014
Fair value
|
||||||
Interest rate swaps
|
Financial Instruments non-current assets
|
$
|
13,517
|
$
|
10,101
|
||||
Interest rate swaps
|
Financial Instruments current liabilities
|
(30,266
|
)
|
(17,881
|
)
|
||||
Interest rate swaps
|
Financial Instruments non-current liabilities
|
(15,557
|
)
|
(8,617
|
)
|
||||
Total derivatives
|
$
|
(32,306
|
)
|
$
|
(16,397
|
)
|
Amount of Gain/(Loss)
|
|||||||||||||
Derivatives not designated
as hedging instruments
|
Location of Gain or (Loss)
Recognized
|
Year ended
December 31, 2012
|
Year ended
December 31, 2013
|
Year ended
December 31, 2014
|
|||||||||
Foreign currency forward contracts
|
Other, net
|
$
|
-
|
-
|
$
|
-
|
|||||||
Interest rate swaps
|
Gain/ (Loss) on interest rate swaps
|
(36,974
|
)
|
8,616
|
(12,671
|
)
|
|||||||
Total
|
$
|
(36,974
|
)
|
8,616
|
$
|
(12,671
|
)
|
December 31,
2014
|
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
|
$
|
10,101
|
-
|
10,101
|
$
|
-
|
||||||||||
Interest rate swaps-liability position
|
(26,498
|
)
|
-
|
(26,498
|
)
|
-
|
||||||||||
Total
|
$
|
(16,397
|
)
|
-
|
(16,397
|
)
|
$
|
-
|
December 31,
2013
|
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
|
$
|
13,517
|
-
|
13,517
|
$
|
-
|
||||||||||
Interest rate swaps-liability position
|
(45,823
|
)
|
-
|
(45,823
|
)
|
-
|
||||||||||
Total
|
$
|
(32,306
|
)
|
-
|
(32,306
|
)
|
$
|
-
|
Number of
non vested shares
|
Weighted average grant date fair value per non vested shares
|
|||||||
Balance December 31, 2012
|
73,500
|
16.40
|
||||||
Granted
|
342,400
|
17.19
|
||||||
Forfeited
|
(15,900
|
)
|
16.90
|
|||||
Vested
|
(160,133
|
)
|
16.92
|
|||||
Balance December 31, 2013
|
239,867
|
$
|
17.15
|
|||||
Granted
|
656,650
|
13.76
|
||||||
Forfeited
|
(78,576
|
)
|
16.93
|
|||||
Vested
|
(205,143
|
)
|
17.31
|
|||||
Balance December 31, 2014
|
612,798
|
$
|
13.49
|
Number of
vested shares
|
Weighted average grant date fair value per vested shares
|
|||||||
As at December 31, 2012
|
2,500
|
$
|
16.50
|
|||||
Granted and vested
|
117,133
|
17.18
|
||||||
Non vested shares granted in prior years and vested 2013
|
43,000
|
16.16
|
||||||
As at December 31, 2013
|
162,633
|
$
|
16.90
|
|||||
Granted and vested
|
111,585
|
17.39
|
||||||
Non vested shares granted in prior years and vested 2014
|
93,558
|
17.20
|
||||||
Granted and vested shares in prior years, but cancelled during 2014
|
(58,324
|
)
|
16.63
|
|||||
As at December 31, 2014
|
309,452
|
17.22
|
||||||
December 31,
|
||||||||
2013
|
2014
|
|||||||
Cash flows hedges realized loss
|
$
|
(28,256
|
)
|
$
|
(27,222
|
)
|
||
Actuarial pension gain
|
4,802
|
3,284
|
||||||
Total
|
$
|
(23,454
|
)
|
$
|
(23,938
|
)
|
December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
Interest costs on long-term debt
|
$
|
135,819
|
$
|
190,195
|
$
|
261,137
|
||||||
Amortization and write off of financing fees
|
12,944
|
38,797
|
42,995
|
|||||||||
Amortization of unrealized hedge reserve (Note 9.1)
|
9,816
|
-
|
-
|
|||||||||
Capitalized borrowing costs
|
(44,951
|
)
|
(65,492
|
)
|
(37,342
|
)
|
||||||
Commissions, commitment fees and other financial expenses
|
2,799
|
57,064
|
33,341
|
|||||||||
Total
|
$
|
116,427
|
$
|
220,564
|
$
|
300,131
|
Year ended December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
Domestic loss (Marshall Islands)
|
$
|
(2,536
|
)
|
$
|
(66,604
|
) |
$
|
(161,913
|
) | |||
Foreign income/(loss)
|
(85,843
|
)
|
174,518
|
|
499,539
|
|||||||
Total income/(loss) before taxes
|
$
|
(88,379
|
)
|
$
|
107,914
|
$
|
337,626
|
Year Ended December 31,
|
||||||||||||
2012
|
2013
|
2014
|
||||||||||
Current Tax expense
|
$
|
43,957
|
$
|
44,591
|
$
|
77,823
|
||||||
Deferred Tax expense
|
-
|
-
|
-
|
|||||||||
Income taxes
|
$
|
43,957
|
$
|
44,591
|
$
|
77,823
|
||||||
Effective tax rate
|
(49.7
|
)%
|
41.3
|
%
|
23.1
|
%
|
Year Ended December 31,
|
||||||||||||
Reconciliation of total tax expense:
|
2012
|
2013
|
2014
|
|||||||||
Change in valuation allowance
|
$
|
6,311
|
$
|
-
|
$
|
-
|
||||||
Differences in tax rates
|
(3,896
|
)
|
89
|
-
|
||||||||
Effect of permanent differences
|
120
|
-
|
-
|
|||||||||
Adjustments in respect to current income tax of previous years
|
184
|
683
|
-
|
|||||||||
Tax rate on interest
|
-
|
742
|
-
|
|||||||||
Effect of exchange rate differences
|
(1,599
|
)
|
7
|
-
|
||||||||
Income tax
|
42,837
|
43,070
|
70,441
|
|||||||||
Taxes on litigation matters subject to statutory rates, including interest and penalties
|
-
|
-
|
7,382
|
|||||||||
Total
|
$
|
43,957
|
$
|
44,591
|
$
|
77,823
|
Year ended December 31,
|
||||||||
2013
|
2014
|
|||||||
Deferred tax assets
|
||||||||
Net operations loss carry forward
|
$
|
1,723
|
$
|
-
|
||||
Accelerated depreciation of assets
|
65
|
101
|
||||||
Pension
|
608
|
1,184
|
||||||
Total deferred tax assets
|
$
|
2,396
|
$
|
1,285
|
||||
Less: valuation allowance
|
(2,396
|
)
|
(1,285
|
)
|
||||
Total deferred tax assets, net
|
$
|
-
|
$
|
-
|
||||
For the years ended December 31,
|
||||||||||||||||||||||||||||||||||||
2012
|
2013
|
2014
|
||||||||||||||||||||||||||||||||||
Income (numerator)
|
Weighted- average number of outstanding shares (denominator)
|
Amount per share
|
Income (numerator)
|
Weighted- average number of outstanding share (denominator)
|
Amount per share
|
Income (numerator)
|
Weighted- average number of outstanding shares (denominator)
|
Amount per share
|
||||||||||||||||||||||||||||
Net income/(loss)
|
$
|
(132,336
|
)
|
-
|
$
|
-
|
$
|
63,323
|
-
|
$
|
-$
|
$
|
259,803
|
-
|
$
|
-
|
||||||||||||||||||||
Less: Allocation of undistributed earnings to non-vested stock
|
-
|
-
|
-
|
(102
|
)
|
-
|
-
|
(772
|
)
|
-
|
-
|
|||||||||||||||||||||||||
Basic and diluted EPS Income/ (loss) attributable to common stockholders
|
$
|
(132,336
|
)
|
131,696,935
|
$
|
(1.00
|
)
|
$
|
63,221
|
131,727,504
|
0.48
|
$
|
259,031
|
131,837,227
|
1.96
|
Country
|
2012
|
2013
|
2014
|
|||||||||
Ghana
|
$
|
175,595
|
$
|
-
|
$
|
-
|
||||||
Norway
|
-
|
157,740
|
220,044
|
|||||||||
Brazil
|
233,569
|
353,397
|
581,635
|
|||||||||
Greenland
|
136
|
-
|
-
|
|||||||||
Ivory Coast
|
-
|
86,486
|
97,232
|
|||||||||
Tanzania
|
196,415
|
72,083
|
-
|
|||||||||
Angola
|
79,884
|
227,603
|
807,742
|
|||||||||
Namibia
|
33,212
|
-
|
-
|
|||||||||
Falkland
|
166,795
|
-
|
-
|
|||||||||
Equatorial Guinea
|
56,297
|
-
|
-
|
|||||||||
Gabon/ West Africa,
|
-
|
81,104
|
-
|
|||||||||
South Africa
|
110,424
|
|||||||||||
Liberia
|
-
|
55,601
|
-
|
|||||||||
Ireland
|
-
|
104,014
|
-
|
|||||||||
Sierra Leone
|
-
|
37,272
|
-
|
|||||||||
Other
|
-
|
4,950
|
-
|
|||||||||
Total leasing and service revenues
|
$
|
941,903
|
$
|
1,180,250
|
$
|
1,817,077
|
2015
|
2016
|
2017
|
Total | |||||||||||||
Drillships building contracts
|
$
|
566,300
|
498,200
|
864,400
|
$
|
1,928,900
|
||||||||||
Total obligations
|
$
|
566,300
|
498,200
|
864,400
|
$
|
1,928,900
|
December 31, | ||||||||
2013
|
2014
|
|||||||
ASSETS
|
||||||||
CURRENT ASSETS:
|
||||||||
Cash and cash equivalents
|
$
|
58
|
$
|
60
|
||||
Other current assets
|
300
|
2,090
|
||||||
Total current assets
|
358
|
2,150
|
||||||
NON-CURRENT ASSETS:
|
||||||||
Investments in subsidiaries*
|
3,494,475
|
3,549,399
|
||||||
Due from related parties
|
-
|
117,219
|
||||||
Total non-current assets
|
3,494,475
|
3,666,618
|
||||||
Total assets
|
$
|
3,494,833
|
$
|
3,668,768
|
||||
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
CURRENT LIABILITIES:
|
||||||||
Other current liabilities
|
$
|
21,075
|
$
|
10,278
|
||||
Total current liabilities
|
21,075
|
10,278
|
||||||
NON-CURRENT LIABILITIES
|
||||||||
Long term debt, net of current portion
|
493,915
|
492,214
|
||||||
Total non-current liabilities
|
493,915
|
492,214
|
||||||
STOCKHOLDERS' EQUITY:
|
||||||||
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2013 and 2014, nil issued and outstanding at December 31, 2013 and 2014, respectively
|
-
|
|||||||
Common stock, $0,01 par value; 1,000,000,000 shares authorized, at December 31, 2013 and 2014, 131,875,128 and 132,017,178 issued and outstanding at December 31, 2013 and 2014 respectively
|
1,319
|
1,320
|
||||||
Additional paid-in capital
|
3,492,650
|
3,494,957
|
||||||
Accumulated other comprehensive loss
|
(23,454
|
)
|
(23,938
|
)
|
||||
Accumulated deficit
|
(490,672
|
)
|
(306,063
|
)
|
||||
Total stockholders' equity
|
2,979,843
|
3,166,276
|
||||||
Total liabilities and stockholders' equity
|
$
|
3,494,833
|
$
|
3,668,768
|
||||
For the year ended December 31, | ||||||||||||
2012
|
2013
|
2014
|
||||||||||
EXPENSES:
|
||||||||||||
General and administrative expenses
|
$
|
12,877
|
$
|
8,565
|
$
|
7,983
|
||||||
Legal settlements and other, net
|
6,100
|
-
|
||||||||||
Operating loss
|
18,977
|
8,565
|
7,983
|
|||||||||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs
|
(58,210
|
)
|
(53,193
|
)
|
(82,109
|
)
|
||||||
Interest income
|
4
|
-
|
1,383
|
|||||||||
Loss on interest rate swaps
|
(38
|
)
|
(149
|
)
|
-
|
|||||||
Other, net
|
(2,476
|
)
|
2,358
|
6,224
|
||||||||
Total other (expenses), net
|
(60,720
|
)
|
(50,984
|
)
|
(74,502
|
)
|
||||||
Equity in earnings/(loss) of subsidiaries*
|
(52,639
|
)
|
122,872
|
342,288
|
||||||||
Net income/(loss)
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
|||||
Net Income / (Loss) To Common Stockholders
|
(132,336
|
)
|
63,221
|
259,031
|
||||||||
Earnings/(loss) per common share, basic and diluted
|
(1.00
|
)
|
0.48
|
1.96
|
||||||||
Weighted average number of shares, basic and diluted
|
131,696,935
|
131,727,504
|
131,837,227
|
For the year ended December 31, | ||||||||||||
2012
|
2013
|
2014
|
||||||||||
Net income / (Loss)
|
$
|
(132,336
|
)
|
$
|
63,323
|
$
|
259,803
|
|||||
Other Comprehensive income / (loss):
|
||||||||||||
Reclassification of realized losses associated with capitalized interest to Consolidated Statement of Operations
|
1,034
|
1,036
|
1,034
|
|||||||||
Reclassification of losses on previously designated cash flow hedges to Consolidated Statement of Operations, net
|
22,904
|
-
|
||||||||||
Actuarial gains/(losses)
|
(637
|
)
|
3,335
|
(1,518
|
)
|
|||||||
Other Comprehensive income / (loss)
|
23,301
|
4,371
|
(484
|
)
|
||||||||
Total Comprehensive income / (loss)
|
$
|
(109,035
|
)
|
$
|
67,694
|
$
|
259,319
|
For the year ended December 31, | ||||||||||||
2012
|
2013
|
2014
|
||||||||||
Net Cash Used in Operating Activities
|
$
|
(59,992
|
)
|
$
|
(62,302
|
)
|
$
|
(88,302
|
)
|
|||
Cash Flows from Investing Activities:
|
||||||||||||
Investments in subsidiaries
|
59,643
|
61,406
|
289,654
|
|||||||||
Loan to parent
|
-
|
-
|
(120,000
|
)
|
||||||||
Proceeds from arrangement fees
|
-
|
-
|
3,000
|
|||||||||
Net Cash Provided by Investing Activities
|
59,643
|
61,406
|
172,654
|
|||||||||
Cash Flows from Financing Activities:
|
||||||||||||
Proceeds from senior notes
|
-
|
-
|
500,000
|
|||||||||
Payments of senior notes
|
-
|
-
|
(500,000
|
)
|
||||||||
Dividends paid
|
- | - |
(75,194
|
)
|
||||||||
Payments for issuance of subsidiaries shares
|
- | - |
(466
|
)
|
||||||||
Payment of financing fees
|
-
|
-
|
(8,690
|
)
|
||||||||
Net Cash used in Financing Activities
|
-
|
-
|
(84,350
|
)
|
||||||||
Net increase/(decrease) in cash and cash equivalents
|
(349
|
)
|
(896
|
)
|
2
|
|||||||
Cash and cash equivalents at beginning of year
|
1,303
|
954
|
58
|
|||||||||
Cash and cash equivalents at end of year
|
$
|
954
|
$
|
58
|
$
|
60
|
TABLE OF CONTENTS
|
|
Page
|
SECTION 1.01. Definitions
|
1
|
SECTION 1.02. Other Definitions
|
37
|
SECTION 1.03. Rules of Construction
|
38
|
SECTION 2.01. Form and Dating
|
39
|
SECTION 2.02. Execution and Authentication; Additional Notes
|
40
|
SECTION 2.03. Registrar, Transfer Agent and Paying Agent
|
41
|
SECTION 2.04. Paying Agent to Hold Money in Trust
|
41
|
SECTION 2.05. Holder Lists
|
41
|
SECTION 2.06. Transfer and Exchange
|
42
|
SECTION 2.07. Replacement Notes
|
55
|
SECTION 2.08. Outstanding Notes
|
55
|
SECTION 2.09. Treasury Notes
|
55
|
SECTION 2.10. Temporary Notes
|
56
|
SECTION 2.11. Cancelation
|
56
|
SECTION 2.12. Default Interest
|
56
|
SECTION 2.13. Persons Deemed Owners
|
57
|
SECTION 2.14. Interest Payment Date; Record Date
|
57
|
SECTION 3.01. Notices to Trustee
|
57
|
SECTION 3.02. Selection of Notes to Be Redeemed or Purchased
|
57
|
SECTION 3.03. Notice of Redemption
|
58
|
SECTION 3.04. Effect of Notice of Redemption
|
59
|
SECTION 3.05. Deposit of Redemption or Purchase Price
|
59
|
SECTION 3.06. Notes Redeemed or Purchased in Part
|
60
|
SECTION 3.07. Optional Redemption
|
60
|
SECTION 3.08. Optional Redemption for Changes in Withholding Taxes
|
61
|
SECTION 4.01. Payment of Notes
|
62
|
SECTION 4.02. Maintenance of Office or Agency
|
62
|
SECTION 4.03. Corporate Existence
|
63
|
SECTION 4.04. Compliance Certificate
|
63
|
SECTION 4.05. Taxes
|
64
|
SECTION 4.06. Stay, Extension and Usury Laws
|
64
|
SECTION 4.07. Restricted Payments
|
64
|
SECTION 4.08. Incurrence of Indebtedness and Issuance of Preferred Stock
|
69
|
SECTION 4.09. Liens
|
73
|
SECTION 4.10. Dividend and Other Payment Restrictions Affecting Subsidiaries
|
73
|
SECTION 4.11. Transactions with Affiliates
|
75
|
SECTION 4.12. Business Activities
|
78
|
SECTION 4.13. Future Note Guarantees
|
78
|
SECTION 4.14. Designation of Restricted and Unrestricted Subsidiaries
|
78
|
SECTION 4.15. Payments for Consent
|
79
|
SECTION 4.16. Reports
|
79
|
SECTION 4.17. Suspension of Covenants
|
81
|
SECTION 4.18. Offer To Repurchase Upon Change of Control
|
82
|
SECTION 4.19. Asset Sales
|
84
|
SECTION 4.20. Additional Amounts
|
88
|
SECTION 5.01. Merger, Consolidation or Sale of Assets
|
91
|
SECTION 6.01. Events of Default
|
93
|
SECTION 6.02. Acceleration
|
95
|
SECTION 6.03. Other Remedies
|
95
|
SECTION 6.04. Waiver of Past Defaults
|
96
|
SECTION 6.05. Control by Majority
|
96
|
SECTION 6.06. Limitation on Suits
|
96
|
SECTION 6.07. Rights of Holders To Receive Payment
|
97
|
SECTION 6.08. Collection Suit by Trustee
|
97
|
SECTION 6.09. Trustee May File Proofs of Claim
|
97
|
SECTION 6.10. Priorities
|
98
|
SECTION 6.11. Undertaking for Costs
|
98
|
SECTION 7.01. Duties of Trustee
|
99
|
SECTION 7.02. Rights of Trustee
|
100
|
SECTION 7.03. Individual Rights of Trustee
|
101
|
SECTION 7.04. Trustee's Disclaimer
|
101
|
SECTION 7.05. Notice of Defaults
|
101
|
SECTION 7.06. Reserved
|
101
|
SECTION 7.07. Compensation and Indemnity
|
101
|
SECTION 7.08. Replacement of Trustee
|
102
|
SECTION 7.09. Successor Trustee by Merger, Etc
|
104
|
SECTION 7.10. Eligibility; Disqualification
|
104
|
SECTION 7.11. Trustee in Other Capacities; Paying Agent
|
104
|
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
|
105
|
SECTION 8.02. Legal Defeasance and Discharge
|
105
|
SECTION 8.03. Covenant Defeasance
|
106
|
SECTION 8.04. Conditions to Legal or Covenant Defeasance
|
106
|
SECTION 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
|
108
|
SECTION 8.06. Repayment to the Issuer
|
108
|
SECTION 8.07. Reinstatement
|
109
|
SECTION 9.01. Without Consent of Holders
|
109
|
SECTION 9.02. With Consent of Holders
|
110
|
SECTION 9.03. Revocation and Effect of Consents
|
112
|
SECTION 9.04. Notation on or Exchange of Notes
|
112
|
SECTION 9.05. Trustee to Sign Amendments, Etc
|
112
|
SECTION 10.01. Satisfaction and Discharge
|
113
|
SECTION 10.02. Application of Trust Money
|
114
|
SECTION 11.01. Note Guarantees
|
114
|
SECTION 11.02. Limitation on Guarantor Liability
|
116
|
SECTION 11.03. Releases
|
116
|
SECTION 12.01. Notices
|
117
|
SECTION 12.02. Certificate and Opinion as to Conditions Precedent
|
118
|
SECTION 12.03. Statements Required in Certificate or Opinion
|
119
|
SECTION 12.04. Rules by Trustee and Agents
|
119
|
SECTION 12.05. No Personal Liability of Directors, Officers, Employees and Stockholders
|
119
|
SECTION 12.06. Governing Law
|
119
|
SECTION 12.07. No Adverse Interpretation of Other Agreements
|
120
|
SECTION 12.08. Successors
|
120
|
SECTION 12.09. Severability
|
120
|
SECTION 12.10. Counterpart Originals
|
120
|
SECTION 12.11. Table of Contents, Headings, Etc
|
120
|
SECTION 12.12. Prescription
|
120
|
SECTION 12.13. Patriot Act
|
120
|
SECTION 12.14. Force Majeure
|
121
|
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
|
NOTE: | This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture. |
Term
|
Defined in Section
|
"Additional Amounts"
|
4.20(a)
|
"Additional Notes"
|
2.02
|
"Affiliate Transaction"
|
4.11(a)
|
"Asset Sale Offer"
|
4.19(e)
|
"Asset Sale Offer Period"
|
4.19(i)
|
"Asset Sale Offer Settlement Date"
|
4.19(i)
|
"Asset Sale Offer Termination Date"
|
4.19(j)(i)
|
"Authentication Order"
|
2.02
|
"Authentication Agent"
|
2.02
|
"Change of Control Offer"
|
4.18(a)
|
"Change of Control Payment"
|
4.18(a)
|
"Change of Control Payment Date"
|
4.18(a)(2)
|
"Covenant Defeasance"
|
8.03
|
"Default Interest"
|
2.12
|
"DTC"
|
2.03
|
"Event of Default"
|
6.01
|
"Excess Proceeds"
|
4.19(e)
|
"Incur"
|
4.08(a)
|
"Indemnified Party"
|
7.07(a)
|
Term
|
Defined in Section
|
"Initial Notes"
|
2.02
|
"interest"
|
1.03
|
"Interest Payment Date"
|
2.14
|
"Issuer"
|
Preamble
|
"Legal Defeasance"
|
8.02
|
"MD&A"
|
4.16(I)(a)(1)
|
"Paying Agent"
|
2.03
|
"Payment Default"
|
6.01(5)(A)
|
"Permitted Debt"
|
4.08(b)
|
"Record Date"
|
2.14
|
"Registrar"
|
2.03
|
"Relevant Date"
|
12.12
|
"Restricted Payments"
|
4.07(a)
|
"Resale Restriction Termination Date"
|
2.06(f)(1)
|
"Reversion Date"
|
4.17(a)
|
"Special Interest Payment Date"
|
2.12
|
"Special Record Date"
|
2.12
|
"Specified Tax Jurisdiction"
|
4.20(a)
|
"Specified Vessel Sale"
|
4.19(c)
|
"Successor"
|
5.01(a)(1)
|
"Suspended Covenants"
|
4.17(a)
|
"Suspension Event"
|
4.17(a)
|
"Taxes"
|
4.20(a)
|
"Transfer Agent"
|
2.03
|
For the Period Below
|
Percentage
|
From April 1, 2017 to March 31, 2018
|
105.438%
|
From April 1, 2018 to September 30, 2018
|
102.719%
|
October 1, 2018 and thereafter
|
100.000%
|
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:
Deutsche Bank Trust Company Americas
60 Wall Street – 16th floor MSNYC60-1630
New York, New York 10005
Attn: Trust and Agency Service
Client Services Manager – Ocean Rig UDW Inc.
|
|
OCEAN RIG UDW INC.
|
|
by
|
/s/ Anthony Kandylidis
|
|
Name: Mr. Anthony Kandylidis
Title: Executive Vice-President
|
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
|
by:
|
Deutsche Bank National Trust Company
|
|
by
|
/s/ Wanda Camacho
|
|
Name: Wanda Camacho
Title: Vice President
|
||
by
|
/s/ Annie Jaghatspanyan
|
|
Name: Annie Jaghatspanyan
Title: Vice President
|
[Face of Rule 144A/Reg. S Note]
|
CUSIP:
|
||
ISIN:
|
No. ________
|
$
|
OCEAN RIG UDW INC.
|
|
by
|
||
Name:
Title:
|
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Authentication Agent
|
||
By:
|
Deutsche Bank National Trust Company
|
|
By:
|
||
Name:
|
||
Title:
|
||
By:
|
||
Name:
|
||
Title:
|
For the Period Below
|
Percentage
|
From April 1, 2017 to March 31, 2018
|
105.438%
|
From April 1, 2018 to September 30, 2018
|
102.719%
|
October 1, 2018 and thereafter
|
100.000%
|
(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
|
|
transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
|
|
Date:
|
_________________
|
Your Signature:
|
||
(Sign exactly as your name appears on the face of this Note)
|
☐
|
Section 4.18 ("Offer to Repurchase Upon
|
☐
|
Section 4.19 ("Asset Sales")
|
Your Signature:
|
||
(Sign exactly as your name appears on the face of this Note)
|
Tax Identification No.:
|
Signature Guarantee*:
|
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 signatory of Trustee or Custodian
|
[Insert Name of Transferor]
|
|||
by
|
|||
Name:
|
|||
Title:
|
(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:
|
[NEW GUARANTOR]
|
|
by
|
||
Name:
Title:
|
OCEAN RIG UDW INC.
|
||
by
|
||
Name:
Title:
|
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
|
by:
|
Deutsche Bank National Trust Company
|
|
by
|
||
Name:
|
||
Title:
|
||
by
|
||
Name:
|
||
Title:
|
Page
|
||
SECTION 1.
|
Definitions and Accounting Terms
|
1
|
1.01.
|
Defined Terms
|
1
|
1.02.
|
Modification to Parties Upon a Qualified DOV MLP IPO.
|
60
|
1.03.
|
Terms Generally; Accounting Terms; GAAP
|
60
|
SECTION 2.
|
Amount and Terms of Loans
|
61
|
2.01.
|
The Loans.
|
61
|
2.02.
|
Notice of Borrowing
|
62
|
2.03.
|
Disbursement of Funds
|
63
|
2.04.
|
Notes
|
64
|
2.05.
|
Pro Rata Borrowings
|
64
|
2.06.
|
Interest
|
65
|
2.07.
|
Conversion of Loans
|
66
|
2.08.
|
Increased Costs, Illegality, Market Disruption, etc
|
66
|
2.09.
|
Compensation
|
68
|
2.10.
|
Change of Lending Office; Limitation on Additional Amounts
|
69
|
2.11.
|
Replacement of Lenders
|
69
|
2.12.
|
Incremental Commitments
|
70
|
2.13.
|
Loan Repurchases
|
73
|
2.14.
|
Extension Offers
|
74
|
2.15.
|
Term Loan Refinancing Protection
|
77
|
2.16.
|
Defaulting Lenders.
|
78
|
SECTION 3.
|
Fees
|
79
|
3.01.
|
Commitment Fee
|
79
|
3.02.
|
Other Fees
|
79
|
3.03.
|
General
|
79
|
SECTION 4.
|
Prepayments; Payments; Taxes
|
80
|
4.01.
|
Voluntary Prepayments
|
80
|
4.02.
|
Event of Loss
|
80
|
4.03.
|
Change of Control
|
82
|
4.04.
|
Prepayment of Revolving Loans
|
84
|
4.05.
|
Termination and Reduction of Commitments
|
84
|
4.06.
|
Repayment of the Loans
|
85
|
4.07.
|
Method and Place of Payment
|
86
|
4.08.
|
Net Payments; Taxes.
|
86
|
4.09.
|
Application of Proceeds
|
90
|
4.10.
|
Priority of Revolving Loans.
|
90
|
SECTION 5.
|
Conditions Precedent
|
91
|
5.01.
|
Conditions Precedent to Effective Date
|
91
|
5.02.
|
Each Borrowing
|
95
|
SECTION 6.
|
Representations, Warranties and Agreements
|
96
|
6.01.
|
Corporate/Limited Liability Company/Limited Partnership Status
|
96
|
6.02.
|
Corporate Power and Authority
|
96
|
6.03.
|
No Violation
|
96
|
6.04.
|
Governmental Approvals
|
97
|
6.05.
|
Financial Statements; Financial Condition; Undisclosed Liabilities; etc
|
97
|
6.06.
|
True and Complete Disclosure
|
98
|
6.07.
|
Use of Proceeds; Margin Regulations
|
99
|
6.08.
|
Tax Returns; Payments; Tax Treatment
|
99
|
6.09.
|
Compliance with ERISA.
|
99
|
6.10.
|
Collateral; the Security Agreements
|
100
|
6.11.
|
Capitalization
|
102
|
6.12.
|
Subsidiaries
|
102
|
6.13.
|
Compliance with Statutes, etc
|
102
|
6.14.
|
Investment Company Act
|
102
|
6.15.
|
Legal Names; Type of Organization (and Whether a Registered Organization); Jurisdiction of Organization; etc
|
102
|
6.16.
|
Environmental Matters
|
102
|
6.17.
|
No Default
|
103
|
6.18.
|
Patents, Licenses, Franchises and Formulas
|
103
|
6.19.
|
Anti-Corruption Laws
|
104
|
6.20.
|
Insurance
|
104
|
6.21.
|
Collateral Vessels.
|
104
|
6.22.
|
Properties
|
105
|
6.23.
|
Anti-Terrorism
|
105
|
6.24.
|
Form of Documentation
|
106
|
6.25.
|
Place of Business
|
106
|
6.26.
|
No Immunity
|
106
|
6.27.
|
Labor Matters
|
106
|
6.28.
|
Existence
|
106
|
6.29.
|
Litigation
|
106
|
SECTION 7.
|
Covenants
|
107
|
7.01.
|
Maintenance of Property; Insurance
|
107
|
7.02.
|
Existence; Conduct of Business
|
109
|
7.03.
|
Operation of Collateral Vessels
|
110
|
7.04.
|
Payment of Obligations.
|
110
|
7.05.
|
Reports
|
110
|
7.06.
|
Notices of Material Events
|
113
|
7.07.
|
Filings; Additional Guarantors; Further Assurances
|
113
|
7.08.
|
Compliance Certificate
|
115
|
7.09.
|
Books and Records; Inspection and Audit Rights
|
116
|
7.10.
|
Compliance with Laws
|
116
|
7.11.
|
Rated Credit Facilities
|
116
|
7.12.
|
Transactions with Affiliates
|
116
|
7.13.
|
Limitations on Liens
|
119
|
7.14.
|
Limitations on Merger, Consolidation or Sale of Assets
|
119
|
7.15.
|
Limitations on Restricted Payments
|
124
|
7.16.
|
Limitations on Indebtedness and Issuance of Preferred Stock
|
130
|
7.17.
|
Limitations on Dividends and Other Payment Restrictions Affecting Subsidiaries
|
134
|
7.18.
|
Consolidated Net Leverage Ratio
|
136
|
7.19.
|
Designation of Restricted and Unrestricted Subsidiaries
|
137
|
7.20.
|
Business Activities
|
138
|
7.21.
|
Rights to Earnings from Collateral Vessels and Ownership of Collateral Vessels
|
138
|
7.22.
|
Limitation on Asset Sales
|
139
|
7.23.
|
Suspension of Covenants
|
143
|
7.24.
|
Activities of Finco.
|
144
|
7.25.
|
[Reserved.]
|
144
|
7.26.
|
Use of Proceeds.
|
144
|
SECTION 8.
|
Events of Default and Remedies
|
144
|
8.02.
|
Application of Funds.
|
147
|
8.03.
|
Replacement of Revolving Lenders under Certain Circumstances
|
149
|
SECTION 9.
|
The Administrative Agent
|
150
|
9.01.
|
Appointment
|
150
|
9.02.
|
Nature of Duties
|
151
|
9.03.
|
Lack of Reliance on the Administrative Agent
|
152
|
9.04.
|
Certain Rights of the Administrative Agent
|
152
|
9.05.
|
Reliance.
|
152
|
9.06.
|
Indemnification
|
153
|
9.07.
|
The Administrative Agent in its Individual Capacity
|
153
|
9.08.
|
Holders
|
153
|
9.09.
|
Resignation by the Administrative Agent
|
153
|
9.10.
|
Co-Collateral Agent; Separate Collateral Agent
|
154
|
9.11.
|
Other Agents
|
155
|
9.12.
|
Security Trustee
|
155
|
SECTION 10.
|
Miscellaneous.
|
155
|
10.01.
|
Payment of Expenses, etc
|
155
|
10.02.
|
Right of Setoff.
|
157
|
10.03.
|
Notices
|
158
|
10.04.
|
Benefit of Agreement; Assignments; Participations
|
159
|
10.05.
|
No Waiver; Remedies Cumulative
|
163
|
10.06.
|
Payments Pro Rata
|
163
|
10.07.
|
Calculations; Computations
|
164
|
10.08.
|
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
|
164
|
10.9.
|
Counterparts
|
165
|
10.10.
|
Effectiveness
|
166
|
10.11.
|
Headings Descriptive
|
166
|
10.12.
|
Amendment or Waiver; etc
|
166
|
10.13.
|
Survival
|
169
|
10.14.
|
Domicile of Loans.
|
169
|
10.15.
|
Register
|
169
|
10.16.
|
Confidentiality
|
169
|
10.17.
|
Intercreditor Agreement
|
170
|
10.18.
|
Currency Conversion Shortfall
|
171
|
10.19.
|
Releases
|
171
|
10.20.
|
Release of Guarantees
|
171
|
10.21.
|
Keepwell
|
172
|
10.22.
|
Parallel Debt.
|
173
|
10.23.
|
Relative Rights of Secured Parties
|
173
|
10.24.
|
Revolving Obligations Payment Priority
|
176
|
ANNEX I
|
Commitments
|
SCHEDULE B
|
Borrower Subsidiary Guarantors
|
SCHEDULE 6.10
|
UCC-1 Filing Offices
|
SCHEDULE 6.11
|
Capital Stock of Borrowers and Borrower Subsidiary Guarantors
|
SCHEDULE 6.12
|
Subsidiaries of the Parent
|
SCHEDULE 6.15
|
Legal Name, Type of Organization (and Whether a Registered Organization), Jurisdiction of each Loan Party
|
SCHEDULE 6.21
|
Collateral Vessels
|
SCHEDULE 6.22
|
Properties
|
EXHIBIT A
|
Form of Assignment and Assumption Agreement
|
EXHIBIT B
|
Form of Guarantee Agreement
|
EXHIBIT C
|
Form of Security Agreement
|
EXHIBIT D
|
Form of Insurance Assignment
|
EXHIBIT E
|
Form of Earnings Assignment
|
EXHIBIT F
|
Form of Perfection Certificate
|
EXHIBIT G
|
Form of Notice of Borrowing
|
EXHIBIT H-1 and H-2
|
Forms of Note
|
EXHIBIT I
|
[Reserved]
|
EXHIBIT J
|
Auction Procedures
|
EXHIBIT K
|
[Reserved]
|
EXHIBIT L
|
Form of Intercreditor Agreement
|
EXHIBITS M-1 to M-4
|
Form of Tax Compliance Certificates
|
EXHIBIT N
|
Form of Ship Mortgage
|
(a) | the Fair Market Value of such assets at the date of determination; and |
(b) | the amount of the Indebtedness of the other Person. |
Fiscal Quarter Ending
|
Consolidated Net
Leverage Ratio |
|||
September 30, 2014
|
5.50 to 1.00
|
|||
December 31, 2014
|
5.50 to 1.00
|
|||
March 31, 2015
|
5.50 to 1.00
|
|||
June 30, 2015
|
5.50 to 1.00
|
|||
September 30, 2015
|
5.50 to 1.00
|
Fiscal Quarter Ending
|
Consolidated Net
Leverage Ratio |
|||
December 31, 2015
|
5.50 to 1.00
|
|||
March 31, 2016 and thereafter
|
5.00 to 1.00
|
(i) | is for relief against the Parent, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in an involuntary case; |
(ii) | appoints a Custodian (1) of the Parent, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, or (2) for all or substantially all of the property of the Parent, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; or |
(iii) | orders the liquidation of the Parent, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; and |
DRILLSHIPS OCEAN VENTURES INC.,
as the Borrower
|
|||
By:
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIPS VENTURES PROJECTS INC.,
as Finco
|
|||
By:
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
OCEAN RIG UDW INC., as Parent
|
|||
By:
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIPS BANK AG NEW YORK BRANCH, as Administrative Agent, Pari Passu Collateral Agent, Lender and Security Trustee,
|
|||
By:
|
|||
/s/ Dusan Lazarov
|
|||
Name: Dusan Lazarov
|
|||
Title: Director
|
|||
By:
|
|||
/s/ Lisa Wong
|
|||
Name: Lisa Wong
|
|||
Title: Vice President
|
|||
SECTION 1.01. Defined Terms
|
1
|
SECTION 1.02. Other Defined Terms
|
2
|
SECTION 2.01. Pledge
|
6
|
SECTION 2.02. Delivery of the Pledged Collateral
|
7
|
SECTION 2.03. Representations and Warranties
|
7
|
SECTION 2.04. Certification of Limited Liability Company and Limited Partnership Interests
|
8
|
SECTION 2.05. Registration in Nominee Name; Denominations
|
9
|
SECTION 2.06. Voting Rights; Dividends and Interest
|
9
|
SECTION 3.01. Security Interest
|
11
|
SECTION 3.02. Representations and Warranties
|
13
|
SECTION 3.03. Covenants
|
14
|
SECTION 3.04. Covenants Regarding Patent, Trademark and Copyright Collateral
|
16
|
SECTION 4.01. Remedies Upon Default
|
17
|
SECTION 4.02. Application of Proceeds
|
19
|
SECTION 4.03. Grant of License to Use Intellectual Property
|
20
|
SECTION 5.01. Notices
|
20
|
SECTION 5.02. Waivers; Amendment
|
21
|
SECTION 5.03. Pari Passu Collateral Agent's Fees and Expenses; Indemnification
|
21
|
SECTION 5.04. Survival
|
22
|
SECTION 5.05. Counterparts; Effectiveness; Successors and Assigns
|
22
|
SECTION 5.06. Severability
|
23
|
SECTION 5.07. Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Immunity
|
23
|
SECTION 5.08. WAIVER OF JURY TRIAL
|
24
|
SECTION 5.09. Headings
|
24
|
SECTION 5.10. Security Interest Absolute
|
24
|
SECTION 5.11. Termination or Release
|
25
|
SECTION 5.12. Additional Subsidiaries
|
26
|
SECTION 5.13. Further Assurances
|
26
|
SECTION 5.14. Pari Passu Collateral Agent's Duties
|
26
|
SECTION 5.15. Force Majeure
|
29
|
SECTION 5.16. Pari Passu Collateral Agent Appointed Attorney-in-Fact
|
29
|
SECTION 5.17. USA PATRIOT Act
|
30
|
SECTION 5.18. Joinder Agreements
|
30
|
SECTION 5.19. Third Party Beneficiaries
|
30
|
SECTION 5.20. INTERCREDITOR AGREEMENT GOVERNS
|
30
|
Schedules
|
|
Schedule I
|
Borrower Subsidiary Grantors
|
Schedule II
|
Pledged Equity Interests
|
Schedule III
|
Intellectual Property
|
Exhibits
|
|
Exhibit I
|
Form of Supplement
|
Exhibit II
|
Form of Earnings Assignment
|
Exhibit III
|
Form of Insurance Assignment
|
Exhibit IV
|
Form of Account Charge Agreement
|
Exhibit V
|
Form of Joinder Agreement
|
DRILLSHIPS OCEAN VENTURES INC.,
as the Borrower
|
|||
by
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIPS VENTURES PROJECTS INC.,
as Finco
|
|||
by
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
OCEAN RIG UDW INC., as Parent
|
|||
by
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIPS OCEAN VENTURES OPERATIONS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
OCEAN RIG CUNENE OPERATIONS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
OCEAN RIG CUBANGO OPERATIONS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIP SKIATHOS OWNERS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIP SKIATHOS SHAREHOLDERS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIP SKYROS OWNERS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIP SKYROS SHAREHOLDERS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIP KYTHNOS OWNERS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
DRILLSHIP KYTHNOS SHAREHOLDERS INC.,
|
|||
By
|
|||
/s/ Solon Drakoulis
|
|||
Name: Solon Drakoulis
|
|||
Title: Attorney-in-fact
|
OCEAN RIG BLOCK 33 BRASIL COÖPERATHIEF U.A.,
|
|||
By
|
|||
/s/ H.W. Wallage
|
|||
Name: H.W. Wallage
|
|||
Title: Attorney-in-fact
|
OCEAN RIG BLOCK 33 BRASIL B.V.
|
|||
By
|
|||
/s/ H.W. Wallage
|
|||
Name: H.W. Wallage
|
|||
Title: Attorney-in-fact
|
DEUTSCHE BANK AG NEW YORK
BRANCH, as Pari Passu Collateral Agent, |
|||
By
|
|||
/s/ Dusan Lazarov
|
|||
Name: Dusan Lazarov
|
|||
Title: Director
|
By
|
|||
/s/ Lisa Wong
|
|||
Name: Lisa Wong
|
|||
Title: Vice President
|
Issuer
|
Number of Certificate
|
Registered Owner
|
Number and Class of Equity Interest
|
Percentage of Equity Interests
|
Drillships Ocean Ventures Inc.
|
1
|
Ocean Rig UDW Inc.
|
500 shares of
common stock |
100%
|
Drillships Ventures Projects Inc.
|
1
|
Drillships Ocean Ventures Inc.
|
500 shares of
common stock |
100%
|
Drillships Ocean Ventures Operations Inc.
|
1
|
Drillships Ocean Ventures Inc.
|
500 shares of
common stock |
100%
|
Ocean Rig Cunene Operations Inc.
|
1
|
Drillships Ocean Ventures Operations Inc.
|
500 shares of
common stock |
100%
|
Ocean Rig Cubango
Operations Inc. |
1
|
Drillships Ocean Ventures Operations Inc.
|
500 shares of
common stock |
100%
|
Drillship Skiathos Owners Inc.
|
1
|
Drillship Skiathos Shareholders Inc.
|
500 shares of
common stock |
100%
|
Drillship Skiathos
Shareholders Inc. |
2
|
Drillships Ocean Ventures Inc.
|
500 shares of
common stock |
100%
|
Drillship Skyros Owners Inc.
|
2
|
Drillship Skyros Shareholders Inc.
|
500 shares of
common stock |
100%
|
Drillship Skyros Shareholders Inc.
|
2
|
Drillships Ocean Ventures Inc.
|
500 shares of
common stock |
100%
|
Drillship Kythnos Owners Inc.
|
1
|
Drillship Kythnos Shareholders Inc.
|
500 shares of
common stock |
100%
|
Drillship Kythnos
Shareholders Inc. |
2
|
Drillships Ocean Ventures Inc.
|
500 shares of
common stock |
100%
|
Ocean Rig Block 33 Brasil Coöperatief U.A.
|
N/A
|
Drillships Ocean Ventures Operations Inc. and Drillships Ocean Ventures Inc.
|
2 membership
interests |
99% owned by Drillships Ocean Ventures Operatio Inc. 1% owned by Drillships Ocean Ventures Inc.
|
Ocean Rig Block 33 Brasil B.V.
|
N/A
|
Ocean Rig Block 33 Brasil Coöperatief U.A.
|
18,000 shares
|
100%
|
Issuer
|
Principal
Amount |
Date of Note
|
Maturity Date
|
N/A
|
N/A
|
N/A
|
N/A
|
Grantor
|
Title
|
Reg. No.
|
Author
|
N/A
|
N/A
|
N/A
|
N/A
|
Grantor
|
Licensor Name and Address
|
Date of License/ Sublicense
|
Title of U.S. Copyright
|
Author
|
Reg. No.
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
Grantor
|
Country
|
Licensor Name and Address
|
Date of License/Sublicensee
|
Title of Non-U.S. Copyrights
|
Author
|
Reg. No.
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
N/A
|
Grantor
|
Patent Numbers
|
Issue Date
|
N/A
|
N/A
|
N/A
|
Grantor
|
Mark
|
Reg. Date
|
Reg. No.
|
N/A
|
N/A
|
N/A
|
N/A
|
Grantor
|
Mark
|
Filing Date
|
Application No.
|
N/A
|
N/A
|
N/A
|
N/A
|
[NAME OF NEW SUBSIDIARY],
|
||
by
|
___________________________________ | |
Name:
Title: |
||
Legal Name:
|
||
Jurisdiction of Formation:
|
||
Location of Chief Executive office:
|
||
DEUTSCHE BANK AG NEW YORK BRANCH, as Pari Passu Collateral Agent,
|
||
by
|
___________________________________ | |
Name:
Title: |
||
___________________________________ | ||
Name:
Title: |
Name
|
Jurisdiction of Formation
|
Chief Executive Office
|
Number of
|
Registered
|
Number and Class of
|
Percentage
|
|
Issuer
|
Certificate
|
Owner
|
Equity Interests
|
of Equity Interests
|
Issuer
|
Principal Amount
|
Date of Note
|
Maturity Date
|
If to the Assignor:
|
[NAME]
c/o OCEAN RIG UDW INC.
Cyprus office, Tribune House
10 Skopa Street, CY1075
Nicosia, Cyprus
Facsimile No.: +357 22761542
Telephone No.: +357 22767515
Email: Law@kkgadvocates.com
Attention: Mr. Savvas Georghiades
|
If to the Assignee:
|
Deutsche Bank AG New York Branch
Trust and Agency Services
60 Wall Street, 27th Floor
Mail Stop: NYC60-2710
New York, New York 10005
USA
Attn: Corporate Team, Drillships Ocean Ventures
Facsimile No.: (732) 578-4635
|
[ASSIGNOR]
|
||
By
|
_______________________________________ | |
Name:
Title:
|
[ASSIGNOR]
|
||
By
|
||
Name:
Title:
|
[ ],
as New Pari Passu Obligations Agent
|
|
By
|
___________________________________ | |
Name:
Title:
|
[ ],
as Assignor
|
||
By
|
___________________________________ | |
Name:
Title:
|
If to the Assignor:
|
|
[NAME]
c/o OCEAN RIG UDW INC.
Cyprus office, Tribune House
10 Skopa Street, CY1075
Nicosia, Cyprus
Facsimile No.: +357 22761542
Telephone No.: +357 22767515
Email: Law@kkgadvocates.com
Attention: Mr. Savvas Georghiades
|
|
If to the Assignee:
|
|
Deutsche Bank AG New York Branch
Trust and Agency Services
60 Wall Street, 27th Floor
Mail Stop: NYC60-2710
New York, New York 10005
USA
Attn: Corporate Team, Drillships Ocean Ventures
Facsimile No.: (732) 578-4635
|
|
[ASSIGNOR]
|
||
By
|
||
Name:
Title:
|
(a) | that by an Assignment of Insurances dated as of July [•], 2014 made by us to Deutsche Bank AG New York Branch, as Pari Passu Collateral Agent (the "Assignee"), a copy of which is attached hereto, we have assigned to the Assignee from and including the date hereof, inter alia, all our right, title and interest in, to and under all policies and contracts of insurance, including our rights under all entries in any Protection and Indemnity or War Risk Association or Club, which are from time to time taken out by us in respect of the [JURISDICTION] registered vessel [NAME] (the "Vessel"), Official No. [NUMBER], and its earnings and all the benefits thereof including all claims of whatsoever nature (all of which together are hereinafter called the "Insurances"). |
(b) | that all claims related to the event of the actual total loss or agreed, compromised or constructive total loss or requisition for title or other compulsory acquisition of the Vessel and claims payable in respect of a major casualty, that is to say any claim (or the aggregate of which) exceeding US$15,000,000 payment shall be made to the Assignee. All other claims, unless and until the insurers have received notice from the Assignee of an Event of Default that is unremedied under the Credit Agreement in which event all claims shall be payable to the Assignee to the Secured Parties up to their mortgage interest, shall be released directly for the repair, salvage or other charges involved or to the Assignor (as the case may be) as reimbursement if it has fully repaired the damage and paid all of the salvage or other charges or otherwise in respect of the Assignor's actual costs in connection with repair, salvage and/or other charges. Any payments made directly to the Assignor shall be paid to the following account: Account no. [•] in the name of [•] with [•]. |
(c) | that you are hereby irrevocably authorized and instructed to pay as from the date hereof all payments under |
(i) | all Insurances, except entries in Protection and Indemnity Associations or Clubs or insurances effected in lieu of such entries, relating to the Vessel in accordance with the loss payable clause in Exhibit 1 of the Assignment of Insurances; and |
(ii) | all entries in Protection and Indemnity Associations or Clubs or insurances affected in lieu of such entries relating to the Vessel in accordance with the loss payable clause in Exhibit 2 of the Assignment of Insurances. |
(d) | that you are hereby instructed to endorse the assignment, notice of which is given to you herein, on all policies or entries relating to the Vessel. |
[ASSIGNOR]
|
||
By
|
||
Name:
Title:
|
[ ],
as New Pari Passu Obligations Agent
|
|
By
|
||
Name:
Title:
|
[ ],
as Assignor
|
||
By
|
||
Name:
Title:
|
Clause
|
Page
|
|
1
|
DEFINITIONS AND INTERPRETATION
|
2
|
2.
|
CHARGING CLAUSE
|
4
|
3.
|
CONTINUING SECURITY
|
4
|
4.
|
UNDERTAKINGS
|
5
|
5.
|
DISCHARGE CONDITIONAL
|
6
|
6.
|
CONTINUING LIABILITY OF CHARGORS
|
6
|
7.
|
ENFORCEMENT
|
7
|
8.
|
POWER OF ATTORNEY
|
8
|
9.
|
ASSIGNMENTS AND TRANSFERS
|
8
|
10.
|
DISCHARGE OF SECURITY
|
9
|
11.
|
MISCELLANEOUS
|
9
|
12.
|
NOTICES
|
10
|
13.
|
APPLICABLE LAW AND JURISDICTION
|
10
|
SCHEDULE 1 -NOTICE TO ACCOUNT BANK
|
12
|
SCHEDULE 2 - ACKNOWLEDGMENT FROM ACCOUNT BANK
|
14
|
(1) | OCEAN RIG BLOCK 33 BRASIL COÖPERATIEF U.A., a cooperatief having its official seat (statutaire zetel) in Amsterdam, the Netherlands and registered with the Dutch trade register under number 55821464 whose registered office is at Claude Debussylaan 24, 1082 MD Amsterdam, the Netherlands (the "Cooperative"); |
(2) | OCEAN RIG BLOCK 33 BRASIL B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) , having its official seat (statutaire zetel) in Amsterdam, the Netherlands and registered with the Dutch trade register under number 55821812 whose registered office address is at Claude Debussylaan 24, 1082 MD Amsterdam, the Netherlands (the "Company"; together with the Cooperative, the "Chargors"); and |
(3) | DEUTSCHE BANK AG NEW YORK BRANCH, a bank incorporated in Germany acting through its branch at 60 Wall Street, 2nd Floor, New York, New York 10005, United States of America, in its capacity as security agent and trustee for the Secured Parties (the "Pari Passu Collateral Agent"). |
(A) | By a credit agreement dated on or about the date of this Agreement (the "Credit Agreement") made between, among others, (1) Drillships Ocean Ventures Inc. as borrower (the "Borrower"), (2) Drillships Ventures Projects Inc. as finco ("Finco"), (3) Ocean Rig UDW Inc as parent ("Parent"), (4) the lenders party thereto from time to time (the "Lenders"), (5) Deutsche Bank AG New York Branch as administrative agent, and (6) the Pari Passu Collateral Agent, the Lenders agreed to make available to the Borrower and its wholly-owned subsidiary Drillships Ventures Projects Inc. a loan of $1,300,000,000. |
(B) | The Chargors maintain with the Account Bank, the following accounts: |
(a) | with respect to the Cooperative, a Dollar denominated account with account number 0046242502; and |
(b) | with respect to the Company, a Dollar denominated account with account number 0046212602 |
(C) | As security for the payment, performance and discharge of the Pari Passu Obligations, the Chargors have agreed to enter into this Deed. |
(D) | This Deed and the Charged Property form part of the trust property which, pursuant to the Credit Agreement, the Pari Passu Collateral Agent holds on trust for itself and the other Secured Parties. |
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
(a) | the amount for the time being standing to the credit of that Accounts; and |
(b) | any amount received by or for the account of the Pari Passu Collateral Agent which the Pari Passu Collateral Agent is under a duty to credit to that Account but which the Pari Passu Collateral Agent has not yet credited to such Account; and |
(c) | any interest accrued or accruing on an amount covered by paragraph (a) or (b) above, whether or not the interest has been credited to that Account; |
1.2 | General interpretation |
1.2.1 | unless the context otherwise requires, words in the singular include the plural and vice versa; |
1.2.2 | references to any document include the same as varied, supplemented or replaced from time to time; |
1.2.3 | references to any enactment include re-enactments, amendments and extensions of that enactment; |
1.2.4 | references to any person include that person's successors and permitted assigns; |
1.2.5 | clause headings are for convenience of reference only and are not to be taken into account in construction; |
1.2.6 | unless otherwise specified, references to Clauses and Recitals are to Clauses of and the Recitals to this Deed; |
1.2.7 | any words following the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; |
1.2.8 | references to the Account include all sub-accounts thereof and any substitute account from time to time opened by the Chargors or either of them at the request of the Pari Passu Collateral Agent (whether with another bank or any branch, sub-branch or subsidiary of the Pari Passu Collateral Agent). |
1.3 | Agreement to prevail |
1.4 | Third party rights |
1.4.1 | Subject to Clause 1.4.2, a third party (being any person other than the Chargors, any Secured Party and its permitted successors and assigns, and any Delegate) has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or enjoy the benefit of any term of this Deed. |
1.4.2 | Notwithstanding Clause 1.4.1 but subject always to Clause 1.4.3 and the provisions of the Third Parties Act, any officer, employee or agent of the Pari Passu Collateral Agent may rely upon the relevant provisions of Clause 7.4 and Clause 8.1.1. |
1.4.3 | Notwithstanding any term of this Deed or any other Pari Passu Document, the consent of any person who is not a party to this Deed (other than a Secured Party in the circumstances required by the Credit Agreement) is not required to rescind or vary this Deed at any time. |
2. | CHARGING CLAUSE |
2.1 | Charge |
2.1.1 | with full title guarantee charges to the Pari Passu Collateral Agent by way of fixed first charge all of its rights, title and interest, both present and future, in and to the Charged Property; and |
2.1.2 | declares that each security interest created by this Clause 2.1 is fixed. |
2.2 | Withdrawals |
2.3 | Application |
3. | CONTINUING SECURITY |
3.1 | Continuing security; charge not affected by other security |
3.1.1 | is and shall at all times be a continuing security for the payment, performance and discharge of the Pari Passu Obligations from time to time; |
3.1.2 | shall not be satisfied by any intermediate payment or performance or satisfaction of any part of the Pari Passu Obligations; |
3.1.3 | shall be in addition to and shall not merge with or be prejudiced or affected by any other security for the Pari Passu Obligations which may have been, or may at any time hereafter be, given to the Secured Parties (or any of them) by the Chargors or any other person, |
3.2 | Right to consolidate |
3.3 | Exclusion of statutory provisions |
3.4 | New accounts |
4. | UNDERTAKINGS |
4.1 | Each Chargor undertakes: |
4.1.1 | immediately following the execution of this Deed to give a notice to the Account Bank in the form set out in Schedule 1 (or in such other form as the Pari Passu Collateral Agent may require or approve) and to use reasonable endeavours to procure that not later than 2 Business Days after the date of this Deed the Account Bank duly acknowledges such notice and delivers an acknowledgement to the Pari Passu Collateral Agent in the form set out in Schedule 2 (or in such other form as the Pari Passu Collateral Agent may require or approve); |
4.1.2 | not, without the prior written consent of the Pari Passu Collateral Agent, to create or suffer the creation of a Lien (other than a Permitted Collateral Lien) over the whole or any part of the Charged Property nor dispose of or deal with the whole or any part of the Charged Property otherwise than in accordance with this Deed; |
4.1.3 | to warrant and defend the title and interest of the Pari Passu Collateral Agent in and to the Charged Property against the claims and demands of all persons whatsoever and not to do or cause or permit anything to be done which may adversely affect the |
4.1.4 | from time to time upon the request of the Pari Passu Collateral Agent to give written notice of the charge contained in this Deed to the persons from whom the moneys hereby charged are or may be due and to procure their acknowledgement thereto, in each case in such form as the Pari Passu Collateral Agent shall require; |
4.1.5 | upon demand and at its own expense, to sign, perfect, do, execute and register all such further assurances, documents, acts and things as the Pari Passu Collateral Agent may require for: |
(a) | perfecting or protecting the security constituted by this Deed; |
(b) | the exercise by the Pari Passu Collateral Agent of any right, power or remedy vested in it under this Deed; |
(c) | enforcing the security constituted by this Deed after it has become enforceable (and each Chargor undertakes to allow its name to be used as and when required by the Pari Passu Collateral Agent for that purpose). |
5. | DISCHARGE CONDITIONAL |
6. | CONTINUING LIABILITY OF CHARGORS |
6.1.1 | the Pari Passu Collateral Agent shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Deed or to make any claim or take any other action to collect any moneys or to enforce any rights and benefits hereby charged to the Pari Passu Collateral Agent or to which the Pari Passu Collateral Agent may at any time be entitled under this Deed; and |
6.1.2 | the Chargors shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Pari Passu Collateral Agent shall not be under any obligation of any kind whatsoever in relation thereto or be under any liability whatsoever in the event of any failure by the Chargors to perform their obligations in respect of the Charged Property. |
7. | ENFORCEMENT |
7.1 | Right to enforce security |
7.2 | Powers upon enforcement |
7.2.1 | to transfer all or any of the moneys credited to any Account to such place and account as the Pari Passu Collateral Agent may think fit, and following such Event of Default at any time and without notice to the Chargors to appropriate all or any of the moneys standing to the credit of such Account(s) and apply the same in or towards the discharge of the Pari Passu Obligations in accordance with Section 8.02 of the Credit Agreement; |
7.2.2 | to purchase with the moneys standing to the credit of the Account any such other currency or currencies as may be necessary to effect any application referred to in this Clause 7; |
7.2.3 | to enter into all kinds of transactions for the purpose of hedging risks which have arisen or which the Pari Passu Collateral Agent considers may arise in respect of any Charged Property out of movements in exchange rates, interest rates or other risks of any kind. |
7.3 | Right of appropriation |
7.4 | Exclusion of liability |
8. | POWER OF ATTORNEY |
8.1 | Each Chargor by way of security hereby irrevocably appoints the Pari Passu Collateral Agent its true and lawful attorney with full power in the name of such Chargor, should the Pari Passu Collateral Agent so elect, to ask, require, demand, receive, compound and give acquittance for any and all moneys, and claims for any and all moneys, due under or arising out of this Deed, and to endorse any cheques or other instruments or orders in connection with such moneys, and to make any claims, take any action and institute any proceedings which the Pari Passu Collateral Agent may consider to be necessary or advisable in this respect and otherwise to do any and all things which such Chargor itself could do in relation to the Charged Property provided always that: |
8.1.1 | neither the Pari Passu Collateral Agent nor any of its officers, employees or agents (except in the case of its or their gross negligence or wilful misconduct) shall be liable to the Chargors for any loss, damage, liability or expense whatsoever and howsoever suffered or incurred by the Chargors as a result of the exercise of such powers; |
8.1.2 | no such power will be exercisable by or on behalf of the Pari Passu Collateral Agent until this Deed shall have become immediately enforceable pursuant to Clause 7.1; and |
8.1.3 | the exercise of any such power by or on behalf of the Pari Passu Collateral Agent shall not put any person dealing with the Pari Passu Collateral Agent upon any enquiry as to whether this Deed has become enforceable, nor shall such person be in any way affected by notice that this Deed has not become so enforceable, and the exercise by the Pari Passu Collateral Agent of such power shall be conclusive evidence of its right to exercise the same. |
9. | ASSIGNMENTS AND TRANSFERS |
9.1 | No assignment or transfer by the Chargors |
9.2 | Assignment and transfer by the Secured Parties |
9.3 | Delegation |
9.4 | Chargors to assist |
10. | DISCHARGE OF SECURITY |
11. | MISCELLANEOUS |
11.1 | Time of essence |
11.2 | Remedies and waivers |
11.3 | Waivers and amendments to be in writing |
11.4 | Severability |
11.5 | Counterparts |
12. | NOTICES |
13. | APPLICABLE LAW AND JURISDICTION |
13.1 | Governing law |
13.2 | Submission to jurisdiction |
13.3 | Service of process |
13.3.1 | that, for the purpose of Proceedings in England, any legal process may be served upon Ince Process Agent Ltd. at its registered office for the time being, presently at 5th Floor, International House, 1 St. Katharine's Way, London E1W 1AY and who, by this Deed, are authorised to accept service on its behalf, which shall be deemed to be good service on such Chargor; and |
13.3.2 | that for so long as any Pari Passu Obligations shall remain outstanding, such Chargor will maintain a duly appointed process agent in England, duly notified to the Pari Passu Collateral Agent, and that failure by any such process agent to give notice thereof to such Chargor shall not impair the validity of such service or of a judgment or order based thereon. |
13.4 | Choice of forum |
13.5 | Forum convenience |
13.6 | Consent |
(a) | with respect to Ocean Rig Block 33 Brasil Coöperatief U.A., a Dollar denominated account with account number 0046242502; and |
(b) | with respect to Ocean Rig Block 33 Brasil B.V., a Dollar denominated account with account number 0046212602. |
2. | By an assignment in writing dated ___ July 2014 (the "Assignment") made by us in favour of Deutsche Bank AG New York Branch (the "Pari Passu Collateral Agent") (which expression includes its successors and assigns) we have assigned to the Pari Passu Collateral Agent as security agent and trustee for itself and the other Secured Parties (as such term is defined in the Assignment) all our rights, title and interest, both present and future, in respect of the Accounts including, in particular, the credit balances on the Accounts as security for all our obligations to the Secured Parties under a credit agreement dated ___ July 2014. |
3. | Notwithstanding such assignment, it is a term of our agreement with the Pari Passu Collateral Agent that payments may be made from the Accounts on our instructions until such time as the Pari Passu Collateral Agent shall direct to the contrary in writing, whereupon you are hereby irrevocably authorised and instructed by us: |
(a) | to hold all sums from time to time credited to the Accounts to the order of the Pari Passu Collateral Agent; and |
(b) | to comply with the terms of any written notice, statement or instructions which the Pari Passu Collateral Agent may from time to time give you with respect to the said funds (including, but without limitation, any instructions to release the said funds or any part thereof to or to the order of the Pari Passu Collateral Agent) without any reference to or further authority from us. |
4. | Please would you acknowledge receipt of this notice and your agreement to its terms by signing the form of acknowledgement on the attached copy of this notice and returning one copy to the Pari Passu Collateral Agent and one copy to us. |
5. | The terms of such acknowledgement shall be binding upon us for all purposes; any payment or transfer or other action which you may make or take in pursuance or in connection with the acknowledgement shall be valid and binding in relation to ourselves; and we irrevocably instruct you to disregard any instruction or communication which you may receive from us or any other person (except the Pari Passu Collateral Agent) before the Pari Passu Collateral Agent notifies you that it has re-assigned to us the rights relating to the Accounts and which you consider to be in any respect contrary to or inconsistent with that acknowledgement. |
1. | We refer to the following bank accounts (the "Accounts") which have been opened with us by Ocean Rig Block 33 Brasil Coöperatief U.A. (the "Cooperative") and Ocean Rig Block 33 Brasil B.V. (the "Company"; together with the Cooperative, the "Chargors"), respectively: |
(a) | with respect to the Cooperative, a Dollar denominated account with account number 0046242502; and |
(b) | with respect to the Company, a Dollar denominated account with account number 0046212602. |
2. | We acknowledge that we have received from the Chargors a notice, a copy of which is attached to this acknowledgement, relating to an assignment dated ___ July 2014 to you of the Chargors' rights in relation to the Accounts. |
3. | We undertake with you that, until you notify us that you have re-assigned to any Chargor the rights relating to the Accounts: |
(a) | we shall treat you as fully entitled, with immediate effect, to operate each Account and, in particular, to effect or authorise withdrawals and transfers from each Account; |
(b) | we shall not, without your prior written consent, make any payment or otherwise act upon any instruction or communication which we may receive from any Chargor or any other person except yourselves in relation to any Account provided that, until you or any Chargor serves on us a notice to the contrary, the Chargors shall be entitled to make withdrawals or transfers from the Accounts without your authorisation; |
(c) | we shall not exercise or assert any form of lien, right of set-off (save for any right of set-off in respect of account fees charged by us in the ordinary course of business) or consolidation or any other similar right of any kind in relation to any Account; |
(d) | we shall notify you as soon as reasonably practicable after we receive notice that any Chargor has executed any other assignment or charge affecting any Account or we are informed that any person has obtained, or is attempting to obtain, any form of attachment affecting any Account or an order or injunction of any court which will or might affect any Account; |
(e) | we shall forward to you monthly statements regarding each Account and promptly provide you with any additional information which you request in writing and which is in our possession or our power to obtain concerning any sum credited or debited to the Accounts or any other matter relating to the Accounts; and |
(f) | we shall treat you (and not any Chargor) as having the power to agree to any variation of any right relating to the Accounts or to any waiver of such a right. |
4. | This acknowledgement and any non-contractual obligations arising out of or in connection with it shall be governed and construed in accordance with English law. |
SIGNED AND DELIVERED AS A DEED
|
)
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by
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)
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duly authorised for and on behalf of
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) _______________________________
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OCEAN RIG BLOCK 33 BRASIL COÖPERATIEF U.A.
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)
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in the presence of:
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)
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Signature:
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Name:
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Occupation:
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Address:
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SIGNED AND DELIVERED AS A DEED
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)
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by
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)
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duly authorised for and on behalf of
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) _______________________________
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OCEAN RIG BLOCK 33 BRASIL B.V.
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)
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in the presence of:
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)
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Signature:
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Name:
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Occupation:
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Address:
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SIGNED AND DELIVERED AS A DEED
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)
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by
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)
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duly authorised for and on behalf of
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) _______________________________
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DEUTSCHE BANK AG NEW YORK BRANCH
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)
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in the presence of:
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)
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Signature:
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Name:
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Occupation:
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Address:
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(1) | DRILLSHIP KYTHNOS OWNERS INC., DRILLSHIP SKIATHOS OWNERS INC., DRILLSHIP SKYROS OWNERS INC., OCEAN RIG CUNENE OPERATIONS INC., OCEAN RIG BLOCK 33 BRASIL B.V. and OCEAN RIG CUBANGO OPERATIONS INC. (the "Pledgors"); and |
(2) | DEUTSCHE BANK AG NEW YORK BRANCH on behalf of itself and the other Secured Parties (together with its successors and assigns, in such capacity the "Pari Passu Collateral Agent"). |
(A) | Drillships Ocean Ventures Inc. (the "Borrower"), Drillships Ventures Projects Inc., Ocean Rig UDW Inc., various lenders, the Pari Passu Collateral Agent and Deutsche Bank AG New York Branch as administrative agent have entered into a USD 1,300,000,000 credit agreement dated __________ July 2014 (the "Credit Agreement"). |
(B) | Pursuant to the terms of a pledge and security agreement dated July 2014 (the "Pledge and Security Agreement") the Pledgors have granted the assignment and security interest and made a pledge and assignment as security for the payment of the Pari Passu Obligations (as defined in the Pledge and Security Agreement). |
(C) | Pursuant to a guarantee dated ________________ July 2014 granted by the Pledgors under the Credit Agreement, the Pledgors have guaranteed the obligation of the Borrower under the Credit Agreement. |
(D) | The obligations of: |
(i) | the Pledgors under the guarantee in (C) above and under the Pledge and Security Agreement; and |
(ii) | the Borrower under the Credit Agreement, |
1. | DEFINITIONS |
2. | SECURITY |
3. | PAYMENT FROM THE ACCOUNT |
4. | ENFORCEMENT OF SECURITY |
(a) | apply any and all amounts standing to the credit of the Accounts as settlement of the Secured Liabilities; |
(b) | transfer ownership to any and all amounts standing to the credit of the Accounts to the Pari Passu Collateral Agent (on behalf of the Secured Parties) as provided for in the Financial Collateral Act; |
(c) | exercise any and all rights of or any other rights, privileges or options pertaining to any and all amounts standing to the credit of the Accounts as if it were the absolute owner thereof; and |
(d) | do all other things in relation to any and all amounts standing to the credit of the Accounts permitted by the Enforcement Act or the Liens Act or applicable law. |
5. | COVENANTS |
(a) | it shall, at its own cost, warrant and defend the rights and interests of the Pari Passu Collateral Agent (on behalf of the Secured Parties) conferred by this Account Pledge Agreement over the respective Accounts against the claims and demands of all persons whomsoever, subject always, however, to necessary authorisations from the Pari Passu Collateral Agent (on behalf of the Secured Parties); and |
(b) | it shall not, create or permit to subsist any security, lien or encumbrance over the respective Accounts except for the pledge created hereby or a Permitted Lien (as defined in the Credit Agreement). |
6. | COMPLIANCE WITH THE FA ACT |
(a) | any and all defences based on underlying relationships, agreements and transactions whatsoever including (without limitation) any right to limit the liability under this Account Pledge Agreement resulting from any failure to give notice of any kind; |
(b) | any right to limit the liability under this Account Pledge Agreement resulting from any failure to comply with applicable provisions set out in Sections 62 to 74 of the FA Act; and |
(c) | any requirement that additional security be provided or maintained. Accordingly the Pari Passu Collateral Agent shall be entitled, without the Pledgors' consent, to amend, supplement, release or waive any security provided for the Secured Liabilities, including (but not limited to) any rescission, waiver, amendment or modification of any term or provision thereof. |
(a) | that Section 67 of the FA Act shall not apply to this Account Pledge Agreement; |
(b) | that the security created by this Account Pledge Agreement shall not be affected in any way whatsoever by any guarantee, indemnity, suretyship or similar instrument or by any collateral or security interest provided for in respect of the Secured Liabilities; and |
(c) | that in addition to this Account Pledge Agreement, the Secured Liabilities shall be secured as described in the Credit Agreement, the Pledge and Security Agreement and related security agreements. |
7. | POWER OF ATTORNEY |
8. | ASSIGNMENT |
9. | INVALIDITY |
10. | GOVERNING LAW AND JURISDICTION |
For and on behalf of
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For and on behalf of
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DRILLSHIP KYTHNOS OWNERS INC.
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DRILLSHIP SKIATHOS OWNERS INC.
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(as Pledgor)
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(as Pledgor)
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By: ____________________________________
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By: _________________________________
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Name with
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Name with
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block letters:
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block letters:
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For and on behalf of
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For and on behalf of
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DRILLSHIP SKYROS OWNERS INC.
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OCEAN RIG CUNENE OPERATIONS INC.
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(as Pledgor)
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(as Pledgor)
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By: ____________________________________
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By: _________________________________
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Name with
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Name with
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block letters:
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block letters:
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For and on behalf of
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For and on behalf of
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|
OCEAN RIG BLOCK 33 BRASIL B.V.
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OCEAN RIG CUBANGO OPERATIONS INC.
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(as Pledgor)
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(as Pledgor)
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By: ____________________________________
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By: _________________________________
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Name with
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Name with
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block letters:
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block letters:
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Pledgor
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Account Number
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Drillship Kythnos Owners Inc.
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1250.04.89608
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Drillship Skiathos Owners Inc.
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1250.04.89624
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Drillship Skyros Owners Inc.
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1250.04.89616
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Ocean Rig Cunene Operations Inc.
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1250.04.92609
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Ocean Rig Block 33 Brasil B.V.
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1250.05.02000
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Ocean Rig Cubango Operations Inc.
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1250.05.01772
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For and on behalf of
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For and on behalf of
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DRILLSHIP KYTHNOS OWNERS INC.
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DRILLSHIP SKIATHOS OWNERS INC.
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(as Pledgor)
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(as Pledgor)
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By: ____________________________________
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By: _________________________________
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Name with
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Name with
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block letters:
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block letters:
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For and on behalf of
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For and on behalf of
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DRILLSHIP SKYROS OWNERS INC.
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OCEAN RIG CUNENE OPERATIONS INC.
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(as Pledgor)
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(as Pledgor)
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By: ____________________________________
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By: _________________________________
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Name with
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Name with
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block letters:
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block letters:
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For and on behalf of
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For and on behalf of
|
|
OCEAN RIG BLOCK 33 BRASIL B.V.
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OCEAN RIG CUBANGO OPERATIONS INC.
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(as Pledgor)
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(as Pledgor)
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By: ____________________________________
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By: _________________________________
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Name with
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Name with
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block letters:
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block letters:
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|
|
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Pledgor
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Account Number
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Drillship Kythnos Owners Inc.
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1250.04.89608
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Drillship Skiathos Owners Inc.
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1250.04.89624
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Drillship Skyros Owners Inc.
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1250.04.89616
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Ocean Rig Cunene Operations Inc.
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1250.04.92609
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Ocean Rig Block 33 Brasil B.V.
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1250.05.02000
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Ocean Rig Cubango Operations Inc.
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1250.05.01772
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(i) | upon receiving of a notice in writing from the Pari Passu Collateral Agent to that effect we will not allow the Pledgors to withdraw funds from the Accounts; |
(ii) | we will observe any further instructions by the Pari Passu Collateral Agent as regards withdrawal of funds from the Accounts; |
(iii) | we will not exercise any right of set off in respect of the Accounts; and |
(iv) | we have not received any prior notice of any encumbrance in relation to the Accounts. |
[ ],
as New Pari Passu Obligations Agent
|
|
By
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||
Name:
Title:
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DRILLSHIPS OCEAN VENTURES INC., as Borrower
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||
By
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||
Name:
Title:
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DRILLSHIPS VENTURES PROJECTS INC., as Borrower
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By
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||
Name:
Title:
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Clause
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Page
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1.
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DEFINITIONS
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4
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||
2.
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APPOINTMENT AND AUTHORISATION
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5
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||
3.
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SCOPE OF WORK: ADMINISTRATIVE SERVICES
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6
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||
3.1.
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Finance / Treasury
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6
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3.1.1
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Management of monies
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6
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3.1.2
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Income collection
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6
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3.1.3
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Use of monies received
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6
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3.1.4
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Payment of wages, etc.
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7
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3.2
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Accounting, financial and reporting
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7
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3.2.1
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General
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7
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||
3.2.2
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Monthly reports
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7
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3.2.3
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Annual reports
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7
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||
3.2.4
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Budgets
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8
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3.3
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Other administrative services
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8
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||
3.4
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Other reports
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8
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||
4.
|
SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
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8
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||
4.1
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General Manager Responsibilities
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8
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||
4.2
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Marketing and Employment
|
9
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4.3
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Insurance
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10
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||
4.3.1
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General
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10
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||
4.3.2
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Additional or alternative insurances
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10
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4.3.3
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Employer's liability insurance
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10
|
||
4.3.4
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Insurance Claims
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10
|
||
5.
|
SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES
|
11
|
||
5.1
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Personnel
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11
|
||
5.2
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Technical assistance
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12
|
||
5.3
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Change of registry
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12
|
||
5.4
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Environment, safety and compliance with law
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12
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5.5
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Quality Assurance
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12
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||
5.6
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Reporting of events
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12
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||
6.
|
MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
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13
|
||
7.
|
MANAGEMENT FEE
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13
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||
7.1
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The Management Fee
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13
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||
7.2
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Cost base for Management Fee
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13
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||
7.3
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Preliminary Fee: calculation and payment
|
14
|
||
7.4
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Settlement of Management Fee
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14
|
7.5
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Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
|
||
8.
|
OWNER'S EQUIPMENT
|
15
|
||
9.
|
EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
|
15
|
||
10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
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15
|
||
11.
|
TAXES
|
16
|
||
12.
|
CONSULTATION
|
16
|
||
13.
|
DURATION AND TERMINATION
|
16
|
||
13.1
|
Duration
|
16
|
||
13.2
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Termination
|
16
|
||
13.3
|
Effect of termination
|
16
|
||
14.
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AUDIT AND ATTENDANCE/SUPERVISION
|
17
|
||
14.1
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Audit
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17
|
||
14.2
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Attendance / Supervision
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17
|
||
15.
|
ASSIGNMENT
|
17
|
||
16.
|
EXCLUSION OF SET OFF
|
17
|
||
17.
|
INDEMNITY
|
17
|
||
18.
|
FORCE MAJEURE
|
18
|
||
19.
|
SURVIVAL OF PROVISIONS
|
18
|
||
20.
|
COUNTERPARTS
|
18
|
||
21.
|
MODIFICATION OF AGREEMENT
|
18
|
||
22.
|
CONFIDENTIALITY
|
18
|
||
23.
|
GOVERNING LAW
|
19
|
||
24.
|
ARBITRATION
|
19
|
1 | Drillship Skyros Owners Inc. of Marshall Islands, having its registered offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"); and |
2. | Ocean Rig Management Inc., having its registered offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands also maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue GR-15125, Marousi, Greece, pursuant to Law 89/67, as amended (the "Manager"), |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner will be the registered owner of the drilling ship Hull 2013 tbn "Ocean Rig Skyros" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK: ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
3.1.1 | Management of monies |
3.1.2 | Income collection |
3.1.3 | Use of monies received |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel; |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.1.4 | Payment of wages etc. |
3.2 | Accounting, financial and reporting |
3.2.1 | General |
3.2.4 | Budgets |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below). Whereas the Manager is obliged to use its best efforts to seek such employment the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(i) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management.. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts of commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owners board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
4.3.1 | General |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
4.3.2 | Additional or alternative insurances |
4.3.3 | Employer's liability insurance |
4.3.4 | Insurance Claims |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents; |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract; or in the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e, | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Managers organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fit with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel. A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12 | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
Ocean Rig Management Inc.
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Drillship Skyros Owners Inc.
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/s/ Dr. Adriano Cefai
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/s/ Dr. Adriano Cefai
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Dr. ADRIANO CEFAI
DIRECTOR MARE SERVICES LTD 5/1 MERCHANTS STREET VALLETTA VLT 1171 |
Dr. ADRIANO CEFAI
DIRECTOR MARE SERVICES LTD 5/1 MERCHANTS STREET VALLETTA VLT 1171 |
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OMEGA SERVICES LIMITED
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MARE SERVICES LMITED
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Sole Director
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Sole Director
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Clause
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Index
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Page
|
Section 1
|
Interpretation
|
3
|
1
|
Definitions and Interpretation
|
3
|
Section 2
|
The Facilities
|
26
|
2
|
The Facilities
|
26
|
3
|
Purpose
|
26
|
4
|
Conditions of Utilisation
|
27
|
Section 3
|
Utilisation
|
28
|
5
|
Utilisation
|
28
|
Section 4
|
Repayment, Prepayment and Cancellation
|
30
|
6
|
Repayment
|
30
|
7
|
Prepayment and Cancellation
|
31
|
Section 5
|
Costs of Utilisation
|
34
|
8
|
Interest
|
34
|
9
|
Interest Periods
|
37
|
10
|
Changes to the Calculation of Interest
|
37
|
11
|
Fees
|
38
|
Section 6
|
Additional Payment Obligations
|
40
|
12
|
Tax Gross Up and Indemnities
|
40
|
13
|
Increased Costs
|
44
|
14
|
Other Indemnities
|
45
|
15
|
Mitigation by the Lenders
|
48
|
16
|
Costs and Expenses
|
48
|
Section 7
|
Guarantee
|
50
|
17
|
Guarantee and Indemnity
|
50
|
Section 8
|
Representations, Undertakings and Events of Default
|
53
|
18
|
Representations
|
53
|
19
|
Information Undertakings
|
59
|
20
|
Financial Covenants
|
61
|
21
|
General Undertakings
|
63
|
22
|
Insurance Undertakings
|
70
|
23
|
Drillship Undertakings
|
74
|
24
|
Security Cover
|
79
|
25
|
Application of Earnings
|
80
|
26
|
Events of Default
|
82
|
Section 9
|
Changes to Parties
|
86
|
27
|
Changes to the Lenders
|
86
|
28
|
Changes to the Obligors
|
91
|
Section 10
|
The Finance Parties
|
92
|
29
|
The Facility Agent and the Mandated Lead Arrangers
|
92
|
30
|
The Security Agent
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101
|
31
|
Kexim Guarantee Agent
|
114
|
32
|
Conduct of Business by the Finance Parties
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116
|
33
|
Sharing among the Finance Parties
|
117
|
Section 11
|
Administration
|
119
|
34
|
Payment Mechanics
|
119
|
35
|
Set-Off
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122
|
36
|
Notices
|
122
|
37
|
Calculations and Certificates
|
124
|
38
|
Partial Invalidity
|
125
|
39
|
Remedies and Waivers
|
125
|
40
|
Settlement or Discharge Conditional
|
125
|
41
|
Irrevocable Payment
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125
|
42
|
Amendments and Waivers
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125
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43
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Confidentiality
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126
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44
|
Counterparts
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129
|
Section 12
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Governing Law and Enforcement
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130
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45
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Governing Law
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130
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46
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Enforcement
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130
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Schedule 1
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The Parties
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131
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Schedule 2
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Conditions Precedent
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138
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Schedule 3
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Requests
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143
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Schedule 4
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Form of Transfer Certificate
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145
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Schedule 5
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Form of Assignment Agreement
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148
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Schedule 6
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Form of Compliance Certificate
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150
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Schedule 7
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Form of Accession Letter
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152
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Schedule 8
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Repayments
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153
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Schedule 9
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Form of Prepayment/ Cancellation Notice
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154
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Schedule 10
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Timetables
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155
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Schedule 11
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Corporate Structure
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156
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Execution Pages
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157
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(1) | DRILLSHIP ALONISSOS SHAREHOLDERS INC, a corporation incorporated under the laws of the Marshall Islands with registered number 56858 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 (The Guarantors) 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 FINANCIAL INSTITUTIONS listed in Part C of Schedule 1 (The Lenders) as original lenders under the Kexim Guaranteed Facility (the "Original Kexim Guaranteed Lenders"); |
(5) | THE EXPORT–IMPORT BANK OF KOREA of 38 Eunhaeng-ro, Yeongdeungpo-gu, Seoul, 150996, Republic of Korea as lender under the Kexim Direct Facility ("Kexim"); |
(6) | DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH)as mandated lead arrangers (the "Mandated Lead Arrangers"); |
(7) | DNB BANK ASA and DVB BANK SE (AMSTERDAM BRANCH) as hedge counterparties (the "Hedge Counterparties"); |
(8) | DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent for the Kexim Guaranteed Lenders (the "Kexim Guarantee Agent"); |
(9) | DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as bookrunner (the "Bookrunner") and coordinator (the "Coordinator"); |
(10) | DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as agent of the other Finance Parties (the "Facility Agent"); and |
(11) | DNB BANK ASA of Dronning Eufemias gate 30, 0191 Oslo, Norway, as security agent for the Secured Parties (the "Security Agent"). |
(A) | The Lenders have agreed to make available to the Borrower facilities of up to USD 475,000,000 in aggregate for the purposes of financing post-delivery no more than 70 per cent. of the Market Value of the Drillship on or around the Delivery Date, which is to be constructed by the Builder for, and purchased by, the Drillship Owner pursuant to the Building Contract. |
(B) | The Borrower may enter into interest rate swap transactions with Hedge Counterparties under the Hedging Agreements to hedge its exposure under this Agreement to interest rate fluctuations (but not for speculative purposes). |
(a) | the Commercial Facility Margin for the Commercial Facility; |
(b) | the Kexim Direct Facility Margin for the Kexim Direct Facility; and |
(c) | the Kexim Guaranteed Facility Margin for the Kexim Guaranteed Facility. |
(a) | the amount of its participation in all Advances made; and |
(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 agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; |
(b) | the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and |
(c) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III". |
(a) | the interest calculated on the basis of LIBOR only (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Facility or an Unpaid Sum to the last day of the current Interest Period in respect of the Facility or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period |
(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 it; and |
(b) | cash deposits legally and beneficially owned by it, 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 member of the Restricted Group who owns it; and |
(iii) | in the case of cash deposits held by a member of the Restricted 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 Intra-Group Loan from the relevant Obligor to that member of the Restricted 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 Commercial Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Commercial Lender Commitment transferred to it under this Agreement; and |
(b) | in relation to any other Commercial Lender, the amount of any Commercial Lender Commitment transferred to it under this Agreement, |
(a) | any Original Commercial Lender; and |
(b) | any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Commercial Facility in accordance with Clause 27.1 (Assignments and transfers by the Lenders), |
(a) | in relation to a Commercial Lender, its Commercial Lender Commitment; |
(b) | in relation to Kexim or any other Lender under the Kexim Direct Facility, its Kexim Commitment; |
(c) | in relation to a Kexim Guaranteed Lender, its Kexim Guaranteed Lender Commitment. |
(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) | 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) | 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 the 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 the 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 the Drillship. |
(a) | an account in the name of the Borrower, the Drillship Owner and/or any Intra-Group Charterer with the Account Bank designated "Earnings Account"; or |
(b) | any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Earnings Account for the purposes of this Agreement, |
(a) | any release, emission, spill or discharge into the Drillship or into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from the 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 the Drillship and which involves a collision between |
(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 the Drillship and in connection with which the Drillship is actually or potentially liable to be arrested and/or where any Obligor and/or the Manager, Client or any other operator of the 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) | sections 1471 to 1474 of the Code or any associated regulations; |
(b) | any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or |
(c) | any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. |
(a) | in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; |
(b) | in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or |
(c) | in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017, |
(a) | this Agreement; |
(b) | any Fee Letter; |
(c) | any Hedging Agreement; |
(d) | any Account Security; |
(e) | any Shares Security; |
(f) | the Mortgage; |
(g) | any General Assignment; |
(h) | any Assignment of Hedging Agreements; |
(i) | any Assignment of Satisfactory Drilling Contract; |
(j) | any Assignment of Intra-Group Loan; |
(k) | the Manager's Undertaking; |
(l) | 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 |
(m) | 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 the Drillship in any protection and indemnity or war risks association, effected in respect of the Drillship, its Earnings or otherwise in relation to the 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) | in relation to Kexim, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (The Parties) and the amount of any other Kexim Commitment transferred to it under this Agreement; and |
(b) | in relation to any Lender under the Kexim Direct Facility, the amount of any Kexim Commitment transferred to it under this Agreement, |
(a) | in relation to an Original Kexim Guaranteed Lender, the aggregate of the amounts set opposite its name under the heading "Commitment" in Part C of Schedule 1 (the Lenders) and the amount of any other Kexim Guaranteed Lender Commitment transferred to it under this Agreement; and |
(b) | in relation to any other Kexim Guaranteed Lender, the amount of any Kexim Guaranteed Lender Commitment transferred to it under this Agreement, |
(a) | any Original Kexim Guaranteed Lender; and |
(b) | any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in relation to the Kexim Guaranteed Facility in accordance with Clause 27.1 (Assignments and transfers by the Lenders), |
(a) | Kexim; |
(b) | the Original Kexim Guaranteed Lenders; |
(c) | the Original Commercial Lenders; and |
(d) | any New Lender, |
(a) | the applicable Screen Rate; or |
(b) | if no Screen Rate is available for the currency of that Advance, the Loan, that part of the Loan 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 Loan immediately before repayment or prepayment in full aggregate more than 66% per cent. of the Loan immediately before such repayment, |
(a) | as at a date not more than 14 days previously (or, in relation to the valuations delivered pursuant to paragraph 3.4 of Part B of Schedule 2 (Conditions Precedent), 30 days previously); |
(b) | by an Approved Broker; |
(c) | with or without physical inspection of the 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) | Security disclosed in writing to the Facility Agent prior to the date of this Agreement and acceptable to the Facility Agent; |
(c) | liens for unpaid master's and current crew's wages in accordance with usual maritime practice; |
(d) | liens for salvage; |
(e) | any ship repairer's or outfitter's possessory lien arising by operation of law and not exceeding USD 2,500,000; and |
(f) | any other liens incurred in the ordinary course of operating such Drillship by operation of law and securing obligations not more than 30 days overdue and 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) | each member of the Group; and |
(b) | each of its directors and officers, employees, agents and representatives. |
(a) | any expropriation, confiscation, requisition or acquisition of the 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 Drillship Owner; and |
(b) | any arrest, capture, seizure or detention of the Drillship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the Drillship Owner. |
(a) | listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person); |
(b) | located in or incorporated under the laws of any country or territory that is the target of comprehensive, country- or territory-wide Sanctions which attach legal effect to being located in or incorporated under the laws of any country or territory that is the target of comprehensive, country or territory-wide Sanctions; or |
(c) | directly or indirectly owned or controlled by, or acting on behalf, at the direction or for the benefit of, a person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above. |
(a) | an account in the name of the Borrower with the Account Bank designated "Retention Account"; or |
(b) | any other account (with that or another office of the Account Bank or with a bank or financial institution other than the Account Bank) which is designated by the Facility Agent as the Retention Account for the purposes of this Agreement. |
(a) | the lists of Sanctions designations and/or targets maintained by any Sanctions Authority; and/or |
(b) | any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, from time to time. |
(a) | the drilling contract for the Drillship (contract number 4640002125) dated 30 July 2013 and made between (i) Ocean Rig Global Chartering Inc., as later novated to the Drillship Owner pursuant to a novation agreement dated 3 December 2014 and (ii) Total E&P Congo as client, at a base day rate of USD 580,000 and having a fixed duration of three years; or |
(b) | any other agreement for the employment of the Drillship for drilling operations which is in form and substance customary in the offshore drilling market and acceptable to all the Lenders, entered into between the Drillship Owner or an Intra-Group Charterer and a Client. |
(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 Transaction 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, |
(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) | has direct or indirect control; or |
(b) | owns directly or indirectly more than fifty (50) per cent (votes and/or capital), |
(a) | actual, constructive, compromised, agreed or arranged total loss of the Drillship; or |
(b) | any Requisition. |
(a) | in the case of an actual loss of the Drillship, the date on which it occurred or, if that is unknown, the date when the Drillship was last heard of; |
(b) | in the case of a constructive, compromised, agreed or arranged total loss of the 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 Drillship Owner with the Drillship's insurers in which the insurers agree to treat the 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) | a person which is resident for tax purposes in the US; or |
(b) | a person some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes. |
(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) or any law in force from time to time in Switzerland relating to value added tax; 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; |
(iv) | "document" includes a deed and also a letter, fax or telex; |
(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; |
(xii) | a provision of law is a reference to that provision as amended or re-enacted; |
(xiii) | a time of day is a reference to London time; |
(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; |
(xv) | words denoting the singular number shall include the plural and vice versa; and |
(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 16 (Costs and expenses), 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 paragraph (b) of Clause 14.2 (Other indemnities), paragraph (b) of Clause 29.11 (Exclusion of liability) or paragraph (b) of Clause 30.11 (Exclusion of liability) 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. |
(a) | a term loan facility which the Commercial Lenders make available in an aggregate principal amount not exceeding the Total Commercial Facility Loan Commitment, being USD 175,000,000 (the "Commercial Facility"); |
(b) | a term loan facility which Kexim makes available in an aggregate principal amount not exceeding the Total Kexim Direct Facility Loan Commitment, being USD 175,000,000 (the "Kexim Direct Facility"); and |
(c) | a term loan facility which the Kexim Guaranteed Lenders make available in an aggregate principal amount not exceeding the Total Kexim Guaranteed Facility Loan Commitment, being USD 125,000,000 (the "Kexim Guaranteed Facility"). |
(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. |
(b) | 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) | 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 7.2 (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 B of Schedule 2 (Conditions Precedent to the Utilisation) in form and substance satisfactory to the Facility Agent. |
(a) | The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied as to the satisfaction of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent). |
(b) | Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, all the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification unless directly caused by the gross negligence or wilful misconduct of the Facility Agent. |
(a) | The Borrower may utilise the Facilities 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 Facilities. All three Facilities must be utilised on the Utilisation Date. |
(a) | The Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: |
(i) | the proposed Utilisation Date is the Delivery Date of the Drillship and is a Business Day within the applicable Availability Period; |
(ii) | the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); |
(iii) | the proposed Interest Period complies with Clause 9 (Interest Periods); and |
(iv) | it specifies the account of the Builder in accordance with the Building Contract and/or the account of the Drillship Owner for reimbursement to the Drillship Owner of amounts already paid to the Builder. |
(b) | Only one Advance under each Facility may be requested in the Utilisation Request. |
(a) | The currency specified in the 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) | The Utilisation for the Drillship must be utilised pro rata across the three Facilities. |
(d) | The aggregate amount of the proposed Advance must be an amount which is not more than 70 per cent. of the Market Value of the Drillship. |
(e) | 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 the Advance available by the Utilisation Date through its Facility Office. |
(b) | Upon receipt of the Utilisation Request, the Facility Agent shall by the Specified Time notify each Lender and the Kexim Guarantee Agent of the details of the requested Advance and the amount of each Lender's participation. |
(a) | 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 (being the Delivery Date) or, if the Utilisation Date does not occur, within three Business Days of demand by the Facility Agent; and |
(b) | shall, without duplication, indemnify each Finance Party against any losses it may incur in connection with such arrangement. |
(a) | The Borrower shall repay each Advance of each Facility by quarterly repayments (each a "Repayment Instalment") and, in relation to the Commercial Facility, the Commercial Facility Balloon (as defined in paragraph (c) below), in each case to be made in accordance with paragraph (c) below and Schedule 8 (Repayments) as attached hereto and as shall be updated promptly following the Delivery Date pursuant to paragraph (e) below. |
(b) | The repayment of each Advance shall commence on the first Repayment Date and on each Repayment Date thereafter, as provisionally set out in Schedule 8 (Repayments) which has assumed that there will be a full drawdown under each of the Facilities. |
(c) | The Repayment Instalments under each Advance and the amount of the Commercial Facility Balloon shall, subject to adjustment as set out in paragraph (e) below, be calculated as follows: |
(i) | the amount drawn under the relevant Facilities for the Drillship shall be split between the three Facilities as set out in Schedule 8 (Repayments) in the ratio 175 : 125 : 175, and thereafter: |
(A) | in the case of the Kexim Direct Facility and the Kexim Guaranteed Facility, spread equally across the maximum number of Repayment Dates up to and including the Kexim Facility Termination Date; and |
(B) | in the case of the Commercial Facility, spread (proportionally as set out in Schedule 8 (Repayments)) in equal amounts across the maximum number of Repayment Dates up to and including the Commercial Facility Termination Date with a balloon payment (the "Commercial Facility Balloon") on the Commercial Facility Termination Date aggregating all amounts remaining then outstanding under the Commercial Facility; and |
(ii) | the aggregate principal outstanding on the Commercial Facility Termination Date shall not exceed USD 275,000,000 (the "Commercial Facility Termination Date Balance"). For the avoidance of doubt, the maximum level of the Commercial Facility Termination Date Balance assumes a full drawdown of the Facilities and the Commercial Facility Termination Balance shall therefore (to the extent required) be adjusted in accordance with paragraph (e) below so as to maintain the agreed loan profile. |
(d) | Unless the Commercial Facility has been renewed as contemplated in Clause 7.5 (Kexim prepayment option), the Commercial Facility Loan shall be repaid in full on the Commercial Facility Termination Date. |
(e) | Schedule 8 (Repayments) sets out the Repayment Instalments and the amount of the Commercial Facility Balloon on an assumed full drawdown and shall be updated to reflect the actual amounts advanced based on the principles set out in this Clause 6.1 (Repayment of Advances), such update shall be provided by the Facility Agent promptly following the Delivery Date (to the extent required) and thereafter the amounts of the Repayment Instalments and the amount of the Commercial Facility Balloon shall be as set out in such updated Schedule 8 (Repayments). |
(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 10 Business 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 five 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 1,000,000) of any unutilised Facility. Any cancellation under this Clause 7.3 (Voluntary and automatic cancellation)) of a Facility or Facilities shall reduce the Commitments of the Lenders under the three Facilities rateably. Subject to the foregoing, any cancellation under this Clause 7.3 (Voluntary and automatic cancellation) of the Commercial Facility shall reduce the Commitments of the Commercial Lenders under the Commercial Facility rateably. |
(b) | The unutilised Commitment of each Lender in respect of any of the Facilities shall be automatically cancelled at close of business on the Utilisation Date. |
(a) | The Borrower may, if it gives the Facility Agent not less than 30 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 7.4 (Voluntary prepayment of the Loan) shall be applied pro rata across the Facilities and thereafter, in relation to each Kexim Facility, in inverse order of maturity against the remaining scheduled Repayment Instalments and, in relation to the Commercial Facility, in inverse order of maturity starting with the Commercial Facility Balloon and thereafter against the remaining scheduled Repayment Instalments. |
(a) | In the event that the Commercial Facility has not been extended hereunder by the Commercial Lenders or otherwise refinanced in each case on terms acceptable to Kexim and the Kexim Guarantor by the date falling three Months prior to the Commercial Facility Termination Date, Kexim and the Kexim Guarantor (acting through the Kexim Guarantee Agent) shall each have the option, but not the obligation, to terminate the Kexim Direct Facility Loan and the Kexim Guaranteed Facility Loan at the Commercial Facility Termination Date. Unless the Borrower has been notified in writing by Kexim and the Kexim Guarantee Agent no later than 60 days before the Commercial Facility Termination Date that Kexim and the Kexim Guarantor are satisfied with such terms and do not require prepayment, then such prepayment options shall be deemed to have been exercised, and the Borrower shall prepay in full each of the Advances made by either or both Kexim and the Kexim Guaranteed Lenders (as the case may be) (being the Kexim Direct Facility Loan and/or the Kexim Guaranteed Facility Loan, 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 the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim set out in paragraph (a) above shall thereafter also arise for the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim at all other relevant times where the Commercial Facility having been extended or refinanced for a further period pursuant to sub-clause (a) above has not been further extended or otherwise refinanced on terms acceptable to the Kexim Guarantor (acting through the Kexim Guarantee Agent) and Kexim by the date falling three Months prior to the maturity date of so extended or refinanced Commercial Facility, so long as any Kexim Direct Facility Loan and/or any Kexim Guaranteed Facility Loan remains at such time outstanding under this Agreement. |
(a) | promptly notify the Facility Agent upon becoming aware of such Event; and |
(b) | unless a new Satisfactory Drilling Contract (under which hire shall commence to be payable within six Months from the date of such new Satisfactory Drilling Contract) is entered into within 90 days after such Event, prepay any and all outstanding amounts under the Finance Documents that exceed the Commercial Facility Termination Date Balance, to be applied pro rata across the Facilities and, within each Facility, in inverse order of maturity, on or before the date falling six Months after the date of such Event. |
(a) | in the case the 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 the 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 9 (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 7.9 (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. |
(a) | the Applicable Margin; and |
(b) | LIBOR. |
(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. |
(a) | The Borrower may request a Hedge Counterparty to enter into Hedging Agreements and shall if such Hedging Agreements are entered into after that date maintain such Hedging Agreements in accordance with this Clause 8.5 (Hedging). |
(b) | Each Hedging Agreement shall: |
(i) | be with a Hedge Counterparty; |
(ii) | be for a term ending on or before the Termination Date; |
(iii) | have settlement dates coinciding with the Interest Payment Dates; |
(iv) | be in agreed form; |
(v) | provide for two-way payments in the event of a termination of a transaction in respect of a Hedging Agreement, whether on a Termination Event (as defined in the relevant Hedging Agreement) or on an Event of Default (as defined in the relevant Hedging Agreement); and |
(vi) | provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars. |
(c) | The rights of the Borrower under the Hedging Agreements shall be assigned by way of security under an Assignment of Hedging Agreements. Each Hedge Counterparty consents to, and acknowledges notices of, the assigning by way of security by the Borrower pursuant to the Assignment of Hedging Agreements of its rights under the Hedging Agreements to which it is party in favour of the Security Agent. Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement. |
(d) | The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement. |
(e) | Neither a Hedge Counterparty nor the Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent. |
(f) | Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to a conflict with any provision of this Agreement. |
(g) | If, at any time, the aggregate notional principal amount of the transactions in respect of the Hedging Agreements exceeds or, as a result of any repayment or prepayment under this Agreement, will exceed 100 per cent. of the Loan at that time, the Borrower must promptly notify the Facility Agent and must, at the request of the Facility Agent, reduce the aggregate notional amount of those transactions by an amount and in a manner satisfactory to the Facility Agent so that it no longer exceeds or will not exceed 100 per cent. of the Loan then or that will be outstanding. |
(h) | Any reductions in the aggregate notional amount of the transactions in respect of the Hedging Agreements in accordance with paragraph (g) above will be apportioned as between those transactions pro rata. |
(i) | Paragraph (g) above shall not apply to any transactions in respect of any Hedging Agreement under which no Borrower has any actual or contingent indebtedness. |
(j) | Subject to paragraph (k) below, neither a Hedge Counterparty nor the Borrower may terminate or close out any transactions in respect of any Hedging Agreement (in whole or in part) except: |
(i) | in accordance with paragraph (g) above; |
(ii) | in the case of termination or closing out by a Hedge Counterparty, on the occurrence of Illegality, a Force Majeure Event, a Tax Event, Failure to Pay or Bankruptcy (as each such expression is defined in the relevant Hedging Agreement); |
(iii) | in the case of termination or closing out by a Hedge Counterparty, if the Facility Agent serves notice under paragraph (b) of Clause 26.19 (Acceleration) or, having served notice under paragraph (b) of Clause 26.19 (Acceleration), makes a demand; |
(iv) | in the case of any other termination or closing out by a Hedge Counterparty or the Borrower, with the consent of the Facility Agent; or |
(v) | If the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged in full; |
(k) | If a Hedge Counterparty is entitled to terminate or close out any transaction in respect of any Hedging Agreement under sub-paragraph (iii) of paragraph (j) above, such Hedge Counterparty shall promptly terminate or close out such transaction following a request to do so by the Security Agent. |
(l) | A Hedge Counterparty may only suspend making payments under a transaction in respect of a Hedging Agreement if the Borrower is in breach of its payment obligations under any transaction in respect of that Hedging Agreement. |
(m) | The Security Agent shall not be liable for the performance of any of the Borrower's obligations under a Hedging Agreement. |
(n) | If a Hedging Agreement is entered into after the delivery of the Drillship, the Borrower shall amend the Mortgage and other Finance Documents as reasonably required by the Facility Agent for the purpose of securing that Hedging Agreement entered into after the Delivery Date or enter into a new Mortgage and amend the other Finance Documents at the request of the Facility Agent. |
(o) | The Borrower agrees that, prior to them (or any of them) entering into any interest rate swap or other hedge instrument with a counterparty (other than a Hedge Counterparty, an "Other Hedge Counterparty") for the purpose of hedging any interest rate risk under this Agreement, the Borrower shall offer for a period of not less than five Business Days to enter into a swap, or other instrument, on the same proposed terms and conditions with the Hedge Counterparties (with each Hedge Counterparty taking such portion as may be agreed between the Borrower and the Hedge Counterparties or, if one or more Hedge Counterparties declines such an offer or the Borrower elects only to enter into the hedge instrument with one of them, the remaining Hedge Counterparty or Hedge Counterparties (as the case may be) shall be entitled to take such portion as it or they (as the case may be) may agree with the Borrower). If all Hedge Counterparties decline such an offer or if the Borrower elects not to proceed on the basis that the offers are not competitive, the Borrower may then (subject, and without prejudice, to the requirements set out elsewhere in the Finance Documents) enter into such swap, or other instrument, on the same terms and conditions offered to those declining Hedge Counterparties (and in the same proportion as those Hedge Counterparties would have taken if they had accepted), with the Other Hedge Counterparty. The rights of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be assigned by way of Security to the Security Agent, and the obligations and liabilities of the Borrower under any hedging agreement with any Other Hedge Counterparty shall be fully subordinated (by way of a subordination agreement) to the obligations and liabilities of the Borrower under the Finance Documents. |
(a) | The Borrower may select the first Interest Period for an Advance in the Utilisation Request. 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 or six 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 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: |
(i) | the Applicable Margin; and |
(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. |
(b) | In this Agreement "Market Disruption Event" means: |
(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. |
(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. |
(a) | The Borrower shall pay to the Facility Agent (for the account of each Lender) a commitment fee (the "Commitment Fee") computed at the rate of 40 per cent. per annum on the relevant Applicable Margin calculated on the undrawn Commitment of each Lender for each Facility, commencing on the date of this Agreement having been signed, and ending on the last day of the relevant Availability Period for each Facility. |
(b) | The accrued Commitment Fee is payable in arrears on the last day of each successive period of three Months which ends during the Availability Period, on the Utilisation Date and, if cancelled, on the cancelled amount of the relevant Lender's or Lenders' Commitment at the time the cancellation is effective. |
(a) | The Borrower acknowledges that the Kexim Guaranteed Lenders shall procure the placement of the Kexim Guarantee either through the Kexim Guarantee Agent or directly with the Kexim Guarantor and shall benefit from it throughout the duration of the Security |
(b) | The Borrower agrees that its obligation to make the payments set out in paragraph (a) above to the Facility Agent in respect of the Kexim Guarantee Premium (or any part thereof) shall be an absolute obligation and shall not be affected by any matter whatsoever. The Kexim Guarantee Premium (or any part thereof) shall be refundable only in accordance with the terms of the Fee Letter referred to in paragraph (a) above. |
(c) | The Borrower acknowledges that the amount of the Kexim Guarantee Premium will be solely determined by the Kexim Guarantor and no Kexim Guaranteed Lender is in any way involved in the determination of the amount of the Kexim Guarantee Premium and agrees that the Borrower shall have no claim or defence against any Kexim Guaranteed Lender in connection with the amount of the Kexim Guarantee Premium. |
(d) | Any refund of the Kexim Guarantee Premium received by a Finance Party shall, provided no Event of Default is continuing, be promptly paid or transferred to the Borrower. |
(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 Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document. |
(b) | Paragraph (a) above shall not apply: |
(i) | with respect to any Tax assessed on a Finance Party: |
(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, |
(ii) | to the extent a loss, liability or cost: |
(A) | is compensated for by an increased payment under Clause 12.2 (Tax gross-up); or |
(B) | relates to a FATCA Deduction required to be made by a Party. |
(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) | that Finance Party has obtained, utilised and retained that Tax Credit; |
(a) | All amounts 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 any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party). |
(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 paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party: |
(i) | confirm to that other Party whether it is: |
(ii) | supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and |
(iii) | supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliances with any other law, regulation or exchange of information regime. |
(b) | If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
(c) | Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iii) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of: |
(i) | any law or regulation; |
(ii) | any fiduciary duty; or |
(iii) | any duty of confidentiality. |
(d) | If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. |
(e) | If the Borrower is a US Tax Obligor, or the Facility Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of: |
(i) | where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement; |
(ii) | where the Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or |
(iii) | where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent, |
(i) | a withholding certificate on Form W-8 or Form W-9 or any other relevant form; or |
(ii) | any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation. |
(f) | The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower. |
(g) | If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Facility Agent). The Facility Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower. |
(h) | The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above. |
(a) | Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
(b) | Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties. |
(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 which: |
(i) | arises as a result of: |
(A) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or |
(B) | compliance with any law or regulation made, |
(ii) | arises as a result of the implementation, interpretation, administration or application of or compliance with Basel III, CRD IV or CRR or any law or regulation that implements or applies Basel III, CRD IV or CRR |
(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 Affiliate's) overall capital; |
(ii) | an additional or increased cost; or |
(iii) | a reduction of any amount due and payable under any Finance Document, |
(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) | attributable to a FATCA Deduction required to be made by a Party; |
(c) | 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); |
(d) | compensated for by any payment made pursuant to Clause 14.3 (Mandatory Cost); |
(e) | attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or |
(f) | 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: |
(i) | making or filing a claim or proof against that Obligor; or |
(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 demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result 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 the 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); |
(iv) | the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or |
(v) | any claim, action, civil penalty or fine against, any settlement, and any other kind of loss or liability, and all reasonable costs and expenses (including reasonable counsel fees and disbursements) incurred by a Secured Party as a result of conduct of any Obligor or member of the Group or any of their partners, directors, officers employees, agents or advisors, that violates any Sanctions. |
(b) | The Borrower shall (or shall procure that an Obligor will) within three Business Days of demand 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, the 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. |
(a) | in the case of a Lender lending from a Facility Office in a Participating Member State, the minimum reserve requirements (or other requirements having the same or similar purpose) of the European Central Bank, the Swiss National Bank or the Swiss Financial Market Supervisory Authority (FINMA) or any other authority or agency which replaces all or any of its functions) in respect of loans made from that Facility Office; and |
(b) | in the case of any Lender lending from a Facility Office in the United Kingdom, any reserve asset, special deposit or liquidity requirements (or other requirements having the same or similar purpose) of the Bank of England (or any other governmental authority or agency) and/or paying any fees to the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other governmental authority or agency which replaces all or any of their functions), |
(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) within five Business Days of demand indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any Secured Party: |
(i) | in relation to or as a result of: |
(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 14.5 (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 (a) of Clause 14.3 (Mandatory Cost) 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. |
(a) | The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation). |
(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. |
(a) | this Agreement and any other documents referred to in this Agreement and the Transaction Security; and |
(b) | any other Finance Documents executed after the date of this Agreement. |
(a) |
an Obligor requests an amendment, waiver or consent; or
|
(b) | an amendment is required pursuant to Clause 34.9 (Change of currency); or |
(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. |
(a) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
(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 of, |
(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 |
(d) | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity); |
(e) | to exercise any right of set-off against any Obligor; and/or |
(f) | to claim or prove as a creditor of any Obligor in competition with any Secured Party. |
(a) | It is a corporation, 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 the Drillship Owner, its execution of the Satisfactory Drilling Contract and the Building Contract, the purchase of and payment for the Drillship under that Building Contract and its registration of the Drillship under the Approved Flag; |
(ii) | its entry into, performance and delivery of, each Finance Document to which it is a party and, in the case of the Drillship Owner, the Satisfactory Drilling Contract and the Building Contract and the transactions contemplated by those Finance Documents, the Building Contract and the Satisfactory Drilling 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 the Drillship Owner, the Building Contract and the Satisfactory Drilling Contract; and |
(b) | to make the Finance Documents to which it is a party and, in the case of the Drillship Owner, the Building Contract and the Satisfactory Drilling Contract, 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 the Drillship Owner, the registration of the Mortgage at the Marshall Island ship registry which will be made at the Delivery Date; |
(b) | 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 against it with respect to Taxes. |
(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 2013. |
(a) | The Building Contract and the Satisfactory Drilling Contract entered into constitutes legal, valid, binding and enforceable obligations of the Builder, the Client and the Drillship Owner respectively, as the case may be. |
(b) | The copies of the Building Contract and the Satisfactory Drilling Contract delivered to the Facility Agent before the date of this Agreement are true and complete copies. |
(c) | No amendments or additions to the Building Contract or the Satisfactory Drilling Contract have been agreed nor has (i) the Drillship Owner or the Builder waived any of their respective rights under the Building Contract or (ii) the Drillship Owner or the Client waived any of their respective rights under the Satisfactory Drilling Contract. |
(a) | The Parent owns all of the shares and the ownership interests in the Borrower as described in Schedule 11 (Corporate Structure). |
(b) | The Borrower owns (directly or indirectly) all of the shares and the ownership interests in the Drillship Owner as described in Schedule 11 (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. |
(a) | in the absolute ownership of the Drillship Owner, free and clear of all encumbrances (other than any Permitted Security), and the Drillship Owner is the sole, legal and beneficial owner of the Drillship; |
(b) | registered in the name of the 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. |
(a) | a Restricted Party; |
(b) | in breach of Sanctions; or |
(c) | subject to or involved in any complaint, claim, proceeding, formal notice, investigation or other action by any regulatory or enforcement authority or third party concerning any Sanctions. |
(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. |
(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, balance sheet and cash flow statement); |
(ii) | the Borrower's audited consolidated financial statements (to include a profit and loss account, balance sheet and cash flow statement); 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, balance sheet and, where available, a cash flow statement); and |
(ii) | the Borrower's unaudited consolidated financial statements for that financial quarter (to include a profit and loss account, balance sheet and, where available, a cash flow statement). |
(c) | prior to each financial year, detailed five year cash flow projections of the Group in a format approved by the Facility Agent (acting reasonably). |
(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 paragraphs (a) and (b) of Clause 19.2 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) and Clause 24.2 (Minimum Required Security Cover) as at the date as at which those financial statements were drawn up. |
(b) | Each Compliance Certificate shall be signed by the chief financial officer or any authorized signatory of the Parent and the Borrower. |
(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. |
(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: |
(i) | the Drillship, the Earnings or the Insurances; |
(ii) | the Charged Property; |
(iii) | compliance of the Obligors with the terms of the Finance Documents; |
(iv) | the financial condition, business and operations of any member of the Group, as any Finance Party (through the Facility Agent) may reasonably request; |
(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; |
(e) | promptly upon becoming aware of them, the details of any inquiry, claim, action, suit, proceeding or investigation pursuant to Sanctions against it, any of its direct or indirect owners, any other member of the Group, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives, as well as information on what steps are being taken with regards to answer or oppose such; and |
(f) | promptly upon becoming aware that it, any of its direct or indirect owners, any other member of the Group, any of their joint ventures or any of their respective directors, officers, employees, agents or representatives has become or is likely to become a Restricted Party. |
(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). |
(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; |
(ii) | any change in the status of an Obligor after the date of this Agreement; or |
(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. |
(a) | The Borrower shall ensure that Cash and Cash Equivalents of the Borrower (on a consolidated basis) will not at any time fall below: |
(i) | USD 10,000,000 from the Delivery Date to but excluding the date falling one year after the Delivery Date; |
(ii) | USD 15,000,000 from the date falling one year after the Delivery Date to but excluding the date falling two years after the Delivery Date; and |
(iii) | USD 20,000,000 thereafter. |
(b) | Notwithstanding sub-paragraph (iii) of paragraph (a) above, if (i) the Satisfactory Drilling Contract is extended for contract periods beyond the third anniversary of each Utilisation and otherwise in form and substance acceptable to the Lenders or (ii) a new firm Satisfactory Drilling Contract is secured for the Drillship , then the Cash and Cash Equivalents of the Borrower (on a consolidated basis) shall instead be not less than: |
(i) | USD 10,000,000 during the next one year of operation of the Drillship; |
(ii) | USD 15,000,000 during the second year of operation of the Drillship; and |
(iii) | USD 20,000,000 thereafter. |
(a) | 25 per cent. from the Delivery Date to but excluding the date falling one year after the Delivery Date; |
(b) | 30 per cent. from the date falling one year after the Delivery Date to but excluding the date falling two years after the Delivery Date; and |
(c) | 35 per cent. thereafter. |
(a) | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
(b) | supply certified copies to the Facility Agent of, any Authorisation required under any law or regulation of any Relevant Jurisdiction or the state of the Approved Flag at any time of the Drillship to enable it to: |
(i) | perform its obligations under the Finance Documents to which it is a party; |
(ii) | perform, in the case of the Drillship Owner, its obligations under the Building Contract, the Satisfactory Drilling Contract and any other Charter 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 Drillship or any Finance Document to which it is a party, the Building Contract, the Satisfactory Drilling Contract and/or any other Charter (as relevant); and |
(iv) | in the case of the Drillship Owner, own and operate the Drillship. |
(a) | comply with all Environmental Laws; |
(b) | obtain, maintain and ensure compliance with all requisite Environmental Approvals; and |
(c) | implement procedures to monitor compliance with and to prevent liability under any Environmental Law. |
(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: |
(i) | such payment is being contested in good faith; |
(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 Owner as described in Schedule 11 (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 11 (Corporate Structure). |
(c) | Each Obligor shall procure that there shall be no change in the corporate structure of the Group described in Schedule 11 (Corporate Structure) except as expressly permitted by this Agreement without the prior written consent of all the Lenders (not to be unreasonably withheld). |
(a) | Each Obligor shall procure that each Intra-Group Charterer shall be a company within the Restricted Group. |
(b) | Each Obligor shall procure that any Intra-Group Charterer not already party to this Agreement (other than a company within the Restricted Group being a counterparty to a Service Contract only) shall accede to this Agreement as an Additional Guarantor by signing an accession letter substantially in the form of Schedule 7 (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. |
(a) | The Drillship Owner shall hold the title to, and own the entire beneficial interest in, the 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 the 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 Drillship, free of any Security and other interests and rights of every kind, except for those set out in Clause 21.16 (Negative pledge). |
(a) | All Charters for the Drillship 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 Owner and/or any other member of the Restricted Group (subject to Clause 21.11 (New Guarantors)) as the case may be; or |
(iii) | with the prior written consent of all the Lenders (not to be unreasonably withheld). |
(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 Owner) shall not engage in any business other than the ownership (direct or indirect, as the case may be) of the Drillship Owner or (if relevant) the operation of the Drillship as an Intra-Group Charterer. |
(c) | The Drillship Owner shall not engage in any business other than the ownership and operation of the Drillship. |
(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; |
(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, |
(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. |
(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 the 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 |
(ii) | any Charter, unless otherwise prohibited under this Agreement. |
(a) | None of the companies within the Restricted Group shall incur any Financial Indebtedness except pursuant to the Finance Documents and any Intra-Group Loan 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. |
(a) | Each Obligor shall procure that any current or future intra-group claims (including any Intra-Group Loan) owed by any Obligor to an Obligor or another company within the Group and all sums owed by any Obligor to the Manager shall be unsecured and fully subordinated, 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) | No payments of principal or interest under any Intra-Group Loan shall be permitted until all outstanding amounts under the Finance Documents have been repaid in full. |
(c) | Additionally each Obligor shall procure that no transfer, novation or assignment of any Intra-Group Loan or other claim (whether for security or otherwise) shall take place at any time to |
(d) | Each Obligor shall procure that any current or future Intra-Group Loan shall be subject to Security under an Assignment of Intra-Group Loan. |
(a) | None of the companies within the Restricted Group shall make any investments or acquisitions, except for any capital expenditure or investments related to ordinary upgrade or maintenance work of the Drillship. |
(b) | None of the companies within the Restricted Group shall provide any guarantee or indemnity to or for the benefit of any person in respect of any obligation or any other person or enter into any document under which it assumes any liability of any other person other than any guarantee or indemnity given under the Finance Documents and except liabilities under guarantees given in the ordinary course of business for operational reasons; or |
(c) | None of the companies within the Restricted Group shall make any loan or provide any form of credit or financial assistance to any person. |
(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). |
(a) | The Parent may only 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 buyback its own common stock (each a "Payment"), to the extent that at the time of such Payment and after giving effect to such Payment: |
(i) | the Parent is in compliance with the financial covenants applicable to it in Clause 20 (Financial Covenants); and |
(ii) | no Default is continuing or would result from the Payment. |
(b) | No Obligor shall, and the Parent shall ensure that no other member of the Group will, agree to any restriction on payment of dividends or other distributions by any member of the Group except for restrictions binding on the Parent. |
(a) | make it unlawful for an Obligor to perform any of its obligations under the Finance Documents; |
(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) | No Obligor shall (and the Parent shall ensure that no other Relevant Person will) take any action, make any omission or use (directly or indirectly) any proceeds of the Loan, in a manner that: |
(i) | is a breach of Sanctions; and/or |
(ii) | causes (or will cause) a breach of Sanctions by any Relevant Person or Finance Party and/or |
(iii) | otherwise benefits any Restricted Party. |
(b) | No Obligor shall (and the Parent shall ensure that no other Relevant Person will) take any action or make any omission that results, or is likely to result, in it or any Finance Party becoming a Restricted Party or otherwise a target of sanctions ("target of sanctions" signifying an entity or person ("Target") that is a target of laws, regulations or orders concerning any trade, economic or financial sanctions or embargoes by virtue of prohibitions and/or restrictions being imposed on any US person or other legal or natural person subject to the jurisdiction or authority of a US Sanctions Authority which prohibit or restrict them from them engaging in trade, business or other activities with such Target without all appropriate licences or exemptions issued by all applicable US Sanctions Authorities). |
(a) | No member of the Restricted Group shall enter into arrangements which provide an obligation to charter in (or similar arrangement) any tonnage from companies outside the Group. |
(b) | Any charter-in arrangement permitted pursuant to paragraph (a) above shall be made on market terms and otherwise on arm's length terms. |
(a) | The Borrower shall procure that no Obligor shall act (or omit to act) in a manner that is inconsistent with or which could result in a breach of any requirement of the Kexim Guarantor under or in connection with the Kexim Guarantee and, in particular: |
(i) | each Obligor shall do all that is reasonably necessary and within its control to ensure that all requirements of the Kexim Guarantor under or in connection with the Kexim Guarantee are complied with; |
(ii) | each Obligor will cooperate with the Facility Agent and the Kexim Guarantee Agent on its reasonable request to take all steps necessary on the part of the Obligors (or any of them) to ensure that the Kexim Guarantee remains in full force and effect throughout the Security Period; and |
(iii) | each Obligor will use reasonable efforts to assist the Kexim Guarantee Agent in making any claim under the Kexim Guarantee. |
(b) | The Borrower shall promptly: |
(i) | notify the Facility Agent and the Kexim Guarantee Agent promptly after it becomes aware of the occurrence of any Default or Event or Default; |
(ii) | provide copies of all financial or other information reasonably required by the Facility Agent and/or the Kexim Guarantee Agent to satisfy any request for information by the Kexim Guarantor pursuant to the Kexim Guarantee. The Borrower agrees that it shall be reasonable for the Facility Agent and/or the Kexim Guarantee Agent to make a request under this Clause 21.27 (Kexim Guarantee protection) if it is required to do so as a condition of maintaining the Kexim Guarantee in full force and effect. |
(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 21.28 (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 the 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 the Drillship, the 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) | The 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 Market Value of the Drillship, 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; |
(v) | in the case of risk of loss of Earnings insurance, in an amount not less than the 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 the Drillship means at all times an amount which equal to or higher than the greater of: |
(i) | 120 per cent. of the Loan; and |
(ii) | the Market Value of the Drillship. |
(a) | subject always to paragraph (b), name the Drillship Owner and any Intra-Group Charterer as the main co assured unless the interest of every other co assured is limited: |
(i) | in respect of any obligatory insurances for hull and machinery and war risks; |
(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) | name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify; |
(c) | 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; |
(d) | 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 |
(e) | provide that the Security Agent may make proof of loss if the Drillship Owner or any 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 the Drillship under such obligatory insurances any premiums due for other Drillships under the fleet or other amounts due to them for other insurances or any other person, they waive any lien on the policies for premium due for other Drillships under the fleet cover or any sums received under them which they might have in respect of such premiums or other amounts due for other Drillships under the fleet cover and they will not cancel such obligatory insurances on this Drillship by reason of non-payment of such premiums for other Drillships under the fleet or other amounts; and |
(vii) | they will arrange for a separate policy to be issued in respect of the Drillship forthwith upon being so requested by the Facility Agent. |
(a) | a copy of the certificate of entry for the 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 the Drillship if trading in the United States or any other relevant jurisdiction. |
(a) | The Drillship Owner shall not 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, the 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, 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 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); |
(iv) | not employ the Drillship, 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; and |
(v) | notify the Facility Agent in writing prior to the Drillship entering the territorial waters of the US, and arrange for such additional protection and indemnity cover as required by the Facility Agent. |
(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, in relation to mortgagee's interest marine insurance, not less than 120 per cent. of the Loan and, in relation to mortgagee's interest additional perils (pollution) insurance, not less than the amount 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 registered in its name under the Approved Flag from time to time at its port of registration; |
(b) | not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and |
(c) | not change the name of the Drillship, |
(i) | the prior consent of the Majority 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. |
(a) | consistent with first class ship ownership and management practice; and |
(b) | so as to maintain the Approved Classification free of any material overdue recommendations nor adverse notations. |
(a) | Subject to paragraph (b) below, the Drillship Owner shall not remove any material part of the Drillship, or any item of equipment installed on the Drillship 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 Drillship, the property of the Drillship Owner and subject to the security constituted by the Mortgage. |
(b) | The Drillship Owner may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Drillship. |
(a) | The Drillship Owner shall promptly discharge: |
(i) | all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Drillship, its Earnings or its Insurances; |
(ii) | all taxes, dues and other amounts charged in respect of the Drillship, its Earnings or its Insurances; and |
(iii) | all other outgoings whatsoever in respect of the Drillship, its Earnings or its Insurances. |
(b) | The Drillship Owner shall forthwith upon receiving notice of the arrest of the Drillship 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. |
(a) | comply, or procure compliance with all laws or regulations: |
(i) | relating to its business generally; and |
(ii) | relating to the Drillship, its ownership, employment, operation, management and registration, |
(b) | obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; and |
(c) | without limiting paragraph (a) above, not employ the Drillship 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's 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; and |
(c) | notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC. |
(a) | consented to in advance and in writing by the underwriters of the 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 Drillship Owner or any 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 Drillship entering the specified war zone; and |
(ii) | it has taken out all insurances necessary to cover all additional risk. |
(a) | the Drillship, 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 and any payments made by it in respect of the Drillship; |
(d) | any towages and salvages; and |
(e) | its compliance, the Manager's compliance and the compliance of the Drillship with the ISM Code and the ISPS Code, |
(a) | any casualty to the Drillship which is or is likely to be or to become a Major Casualty; |
(b) | any occurrence as a result of which the Drillship has become or is, by the passing of time or otherwise, likely to become a Total Loss; |
(c) | any requisition of the Drillship for hire; |
(d) | any requirement or recommendation made in relation to the Drillship 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, any exercise or purported exercise of any lien on the Drillship or its Earnings or any requisition of the Drillship for hire; |
(f) | any intended dry docking of the Drillship; |
(g) | any Environmental Claim made against the Drillship Owner, the Borrower or in connection with the Drillship, or any Environmental Incident; |
(h) | any claim made by it under the Building Contract; |
(i) | any default (by any party) under a Charter; |
(j) | any claim for breach of the ISM Code or the ISPS Code being made against the Drillship Owner, the Manager or otherwise in connection with the Drillship; 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 on demise charter for any period other than a Bareboat Charter; |
(b) | enter into any time or consecutive voyage charter in respect of the Drillship other than a Satisfactory Drilling Contract; |
(c) | appoint a manager of the Drillship other than the Manager; |
(d) | de activate or lay up on a "cold stack" basis the Drillship or otherwise on a basis which would prevent the Drillship from being ready to re-commence employment within a one month period at any time; or |
(e) | put the Drillship 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 the Drillship or its Earnings for the cost of such work or for any other reason. |
(a) | The Drillship shall be employed under the Satisfactory Drilling Contract and no Obligor shall, without the prior written consent of the Majority Lenders, terminate or make any amendments to the Satisfactory Drilling Contract. |
(b) | No Obligor shall, without the prior written consent of the Majority Lenders, terminate or make any material amendments to the Building Contract. |
(a) | The Market Value of the Drillship shall be determined at the Delivery Date of the 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 the Drillship shall be obtained at the cost of the Borrower. |
(c) | The Borrower shall promptly provide the Facility Agent and the Approved Brokers acting under this Clause 24 (Security Cover) with any information which the Facility Agent or the Approved Brokers may request for the purposes of the valuations. |
(a) | the Market Value of the Drillship; plus |
(b) | the net resalable value of additional non-cash Security previously provided under this Clause 24 (Security Cover), |
(c) | from the Delivery Date to but excluding the date falling one year after the Delivery Date, below 120 per cent. of the Loan less any additional cash Security previously provided under this Clause 24 (Security Cover); or |
(d) | from the date falling one year after the Delivery Date to but excluding the date falling two years after the Delivery Date, below 125 per cent. of the Loan less any additional cash Security previously provided under this Clause 24 (Security Cover); or |
(e) | thereafter and for the remainder of the Security Period, below 130 per cent. of the Loan less any additional cash 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 the Majority 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 Security (as applicable), all Earnings received by the Borrower, the Drillship Owner 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) | one-third of the amount of the Repayment Instalment falling due on the next Repayment Date; and |
(b) | the relevant fraction of the aggregate amount of interest on the Loan which is payable on the next due date for payment of interest on the Loan under this Agreement. |
(i) | the numerator is 1; and |
(ii) | the denominator is: |
(B) | if the period is shorter, the number of months from the later of the commencement of the current Interest Period or the last due date for payment of interest on the Loan to the next due date for payment of interest on the Loan under this Agreement. |
(a) | If the credit balance on the Earnings Account is insufficient in any calendar month for the required amount to be transferred to the Retention Account under Clause 25.2 (Monthly retentions), the Borrower shall make up the amount of the insufficiency on demand from the Facility Agent. |
(b) | Without prejudicing the Facility Agent's right to make such demand at any time, the Facility Agent may, if so authorised by the Majority Lenders, permit the Borrower to make up all or part of the insufficiency by increasing the amount of any transfer under Clause 25.2 (Monthly retentions) from the Earnings received in the next or subsequent calendar months. |
(a) | the Repayment Instalment due on that Repayment Date; or |
(b) | the amount of interest payable on that interest payment date, |
(a) | comply with any requirement of the Facility Agent as to the location or relocation of any Earnings Account and the Retention Account (or either 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 and the Retention Account. |
(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 five 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 paragraphs (a) to (d) above is less than USD 25,000,000 (or its equivalent in any other currency). |
(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, |
(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. |
(a) | cancel the Total Commitments, whereupon they shall immediately be cancelled; |
(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, |
(a) | assign any of its rights; or |
(b) | transfer by novation any of its rights and obligations, |
(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; or |
(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 10 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 any amount payable under Clause 14.3 (Mandatory Cost). |
(d) | An assignment will only be effective on: |
(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 27.5 (Procedure for transfer) is complied with. |
(f) | If: |
(i) | a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and |
(ii) | as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax Gross Up and Indemnities) or Clause 13 (Increased Costs), |
(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, |
(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 27 (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 27.2 (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 27.9 (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 |
(iv) | the New Lender shall become a Party as a "Lender". |
(a) | Subject to the conditions set out in Clause 27.2 (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 27.9 (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 27.6 (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 27.5 (Procedure for transfer)), provided that they comply with the conditions set out in Clause 27.2 (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 27.9 (Pro rata interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts. |
(a) | If the Kexim Guarantor makes a payment under the Kexim Guarantee, then, to the extent that it is required to do so by the Kexim Guarantor under the Kexim Guarantee, a Kexim Guaranteed Lender receiving a payment pursuant to the Kexim Guarantee shall, at the cost of the Borrower and without any requirement for the consent of the Borrower, transfer to the Kexim Guarantor (in accordance with, and subject to, Clause 28 (Changes to the Obligors)) a part of its participation in the Loan equal to the amount paid to it by the Kexim Guarantor. |
(b) | A transfer pursuant to paragraph (a) above shall not limit the rights of the relevant Kexim Guaranteed Lender to recover any remaining part of its participation in a Loan or any other moneys owing to it under this Agreement or any other Finance Documents. |
(c) | If the Kexim Guarantor makes any payment to a Kexim Guaranteed Lender under the Kexim Guarantee: |
(i) | the obligations and liabilities of the Obligors (and of any of them) under this Agreement and each of the other Finance Documents shall not be reduced, discharged nor affected in any way; |
(ii) | the Kexim Guarantor shall be subrogated to the rights of that Kexim Guaranteed Lender against the Obligors under this Agreement and each of the other Finance Documents; |
(iii) | the Kexim Guarantor shall be entitled to the extent of such payment to exercise the rights of that Kexim Guaranteed Lender against the Obligors (and against any of them) under this Agreement and each of the other Finance Documents or any relevant laws and/or regulations unless and until such payment and the interest accrued on it are fully reimbursed to the Kexim Guarantor; and |
(iv) | with respect to the obligations and liabilities of the Obligors owed to that Kexim Guaranteed Lender under the Finance Documents (or any of them), such obligations and liabilities shall additionally be owed to the Kexim Guarantor by way of subrogation of the rights of that Kexim Guaranteed Lender. |
(d) | The Obligors shall indemnify the Kexim Guarantor in respect of any costs or expenses (including legal fees) suffered or incurred by it in connection with any transfer referred to in paragraph (a) above. |
(a) | No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents except as expressly permitted by this Agreement. |
(b) | The Borrower may request the consent of all the Lenders to transfer (wholly or partially) the shares in any of the Obligors and/or the ownership of the Drillship to a master limited partnership structure. |
(c) | The Lenders' consent (if given) shall be subject to credit approval from all the Lenders and such further terms and conditions (including any change in the Guarantors) as determined by all the Lenders and the Borrower at that time. |
(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 perform the duties, obligations and responsibilities and 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) | The Facility Agent shall: |
(i) | unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by: |
(A) | all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and |
(B) | in all other cases, the Majority Lenders; and |
(ii) | not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or, if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties). |
(b) | The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested. |
(c) | Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. |
(d) | Paragraph (a) above shall not apply: |
(i) | where a contrary indication appears in a Finance Document; |
(ii) | where a Finance Document requires the Facility Agent to act in a specified manner or to take a specified action; |
(iii) | in respect of any provision which protects the Facility Agent's own position in its personal capacity as opposed to its role of Facility Agent for the relevant Finance Parties. |
(e) | If giving effect to instructions given by the Majority Lenders would in the Facility Agent's opinion have an effect equivalent to an amendment or waiver referred to in Clause 42 (Amendments and Waivers), the Facility Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each relevant Party (other than the Facility Agent) whose consent would have been required in respect of that amendment or waiver. |
(f) | In exercising any discretion to exercise a right, power or authority under the Finance Documents where it has not received any instructions as to the exercise of that discretion the Facility Agent shall do so having regard to the interests of all the Finance Parties. |
(g) | The Facility Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions. |
(h) | Without prejudice to the remainder of this Clause 29.2 (Instructions), in the absence of instructions, 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 Finance Parties. The Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Finance Parties. |
(i) | The Facility Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security. |
(a) | The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature. |
(b) | Subject to paragraph (c) 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. |
(c) | Without prejudice to Clause 27.7 (Copy of Transfer Certificate or Assignment Agreement to Borrower), paragraph (b) above shall not apply to any Transfer Certificate or any Assignment Agreement. |
(d) | 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. |
(e) | If the Facility Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties. |
(f) | 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. |
(g) | The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). |
(a) | Nothing in any Finance Document constitutes the Facility Agent or the Mandated Lead Arrangers as a trustee or fiduciary of any other person. |
(b) | Neither the Facility Agent nor the Mandated Lead Arrangers shall be bound to account to other Finance Party for any sum or the profit element of any sum received by it for its own account. |
(a) | The Facility Agent may: |
(i) | rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; |
(ii) | assume that: |
(A) | any instructions received by it from the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and |
(B) | unless it has received notice of revocation, that those instructions have not been revoked; and |
(iii) | rely on a certificate from any person: |
(A) | as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
(B) | to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
(b) | The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Finance Parties) 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 any group of Finance Parties 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 and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. |
(d) | Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be desirable. |
(e) | The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. |
(f) | The Facility Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not: |
(i) | be liable for any error of judgment made by any such person; or |
(ii) | be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, |
(g) | Unless a Finance Document expressly provides otherwise the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under the Finance Documents. |
(h) | Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arrangers are 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. |
(i) | The Facility Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Facility Agent by any Lender or the identity of any such Lender for the purpose of sub-paragraph (ii) of paragraph (a) of Clause 10.2 (Market disruption). |
(j) | Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. |
(a) | the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor 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 or 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; or |
(c) | any determination as to whether any information provided or to be provided to any Finance Party or Secured 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) | whether or not any Default has occurred; |
(b) | as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or |
(c) | whether any other event specified in any Finance Document has occurred. |
(a) | Without limiting paragraph (b) below (and without prejudice to paragraph (e) of Clause 34.11 (Disruption to Payment Systems etc.)) or any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for: |
(i) | any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct; |
(ii) | exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, 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; or |
(iii) | any shortfall which arises on the enforcement or realisation of the Security Property; or |
(iv) | without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of: |
(A) | any act, event or circumstance not reasonably within its control; or |
(B) | the general risks of investment in, or the holding of assets in, any jurisdiction, |
(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 or any Security Property and any 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 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 shall oblige the Facility Agent or the Mandated Lead Arrangers to carry out: |
(i) | any "know your customer" or other checks in relation to any person; or |
(ii) | any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party, |
(e) | Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages. |
(a) | Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 34.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document). |
(b) | Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Facility Agent pursuant to paragraph (a) above. |
(c) | Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Facility Agent to an Obligor. |
(a) | The Facility Agent may resign and appoint one of its Affiliates acting through an office 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) | If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under paragraph (c) above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent), agree with the proposed successor Facility Agent amendments to this Clause 29 (The Facility Agent and the Mandated Lead Arrangers) and any other term of this Agreement (in each case in accordance with Clause 42 (Amendments and Waivers)) dealing with the rights or obligations of the Facility Agent consistent with then current market practice for the appointment and protection of corporate trustees and those amendments will bind the Parties. |
(e) | 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 as Facility Agent under the Finance Documents. |
(f) | The Facility Agent's resignation notice shall only take effect upon the appointment of a successor. |
(g) | Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.4 (Indemnity to the Servicing Banks) and this Clause 29 (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 (or to indemnify it) in acting as Facility Agent. Any fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). 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. |
(h) | 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 but the cost referred to in paragraph (e) above shall be for the account of the Borrower. |
(i) | 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. |
(j) | The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either: |
(i) | the Facility Agent fails to respond to a request under Clause 12.7 (FATCA Information) and a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
(ii) | the information supplied by the Facility Agent pursuant to Clause 12.7 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
(iii) | the Facility Agent notifies the Borrower and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
(a) | In acting as Facility Agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments. |
(b) | If information is received by a division or department of the Facility Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Facility Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party. |
(a) | Subject to Clause 27.9 (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 Clause 14.3 (Mandatory Cost). |
(c) | Each Finance Party 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 Finance Party 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 |
(a) | the financial condition, status and nature of each member of the Group; |
(b) | the legality, validity, effectiveness, adequacy or 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 Finance 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 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 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) | Any amount payable to the Facility Agent under Clause 14.4 (Indemnity to the Servicing Banks), Clause 16 (Costs and Expenses) and Clause 29.12 (Lenders' indemnity to the Facility Agent) shall include the cost of utilising the Facility Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the Borrower and the other Finance Parties, and is in addition to any fee paid or payable to the Facility Agent under Clause 11 (Fees). |
(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: |
(i) | any securities issued or to be issued by any Obligor or any other person; or |
(ii) | any options or other derivatives in connection with such securities; and |
(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 holds 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 30 (The Security Agent) and the other provisions of the Finance Documents. |
(b) | Each other Finance Party authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
(a) | Each Obligor irrevocably and unconditionally undertakes to pay to the Security Agent its Parallel Debt which shall be amounts equal to, and in the currency or currencies of, its Corresponding Debt. |
(b) | The Parallel Debt of an Obligor: |
(i) | shall become due and payable at the same time as its Corresponding Debt; |
(ii) | is independent and separate from, and without prejudice to, its Corresponding Debt. |
(c) | For purposes of this Clause 30.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent: |
(i) | is the independent and separate creditor of each Parallel Debt; |
(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, and the Corresponding Debt of an Obligor shall be: |
(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 30.2 (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 30.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document. |
(a) | The Security Agent shall: |
(i) | unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Facility Agent acting on the instructions of: |
(A) | all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and |
(B) | in all other cases, the Majority Lenders; and |
(ii) | not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if this Agreement stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties). |
(b) | The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Facility Agent acting on the instructions of the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Finance Party or group of Finance Parties, from that Finance Party or group of Finance Parties) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested. |
(c) | Save in the case of decisions stipulated to be a matter for any other Finance Party or group of Finance Parties under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Facility Agent acting on the instructions of the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. |
(d) | Paragraph (a) above shall not apply: |
(i) | where a contrary indication appears in a Finance Document; |
(ii) | where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action; |
(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 relevant Secured Parties. |
(iv) | in respect of the exercise of the Security Agent's discretion to exercise a right, power or authority under any of: |
(A) | Clause 30.27 (Deductions from receipts); and |
(B) | Clause 30.28 (Prospective liabilities). |
(e) | If giving effect to instructions given by the Facility Agent acting on the instructions of the Majority Lenders would in the Security Agent's opinion have an effect equivalent to an |
(f) | In exercising any discretion to exercise a right, power or authority under the Finance Documents where either: |
(i) | it has not received any instructions as to the exercise of that discretion; or |
(ii) | the exercise of that discretion is subject to sub-paragraph (iv) of paragraph (d) above, |
(g) | The Security Agent may refrain from acting in accordance with any instructions of the Facility Agent acting on the instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions. |
(h) | Without prejudice to the remainder of this Clause 30.4 (Instructions), in the absence of instructions, the Security Agent may (but shall not be obliged to) take such action in the exercise of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate. |
(i) | The Security Agent is not authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (i) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security or enforcement of the Transaction Security. |
(a) | The Security Agent's duties under the Finance Documents are solely mechanical and administrative in nature. |
(b) | The Security Agent shall promptly 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. |
(c) | Except where a Finance Document specifically 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. |
(d) | If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties. |
(e) | The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). |
(a) | Nothing in any Finance Document constitutes the Security Agent as an agent, trustee or fiduciary of any Obligor. |
(b) | The Security Agent shall not 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. |
(a) | The Security Agent may: |
(i) | rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; |
(ii) | assume that: |
(A) | any instructions received by it from the Facility Agent acting on the instructions of the Majority Lenders, any Finance Parties or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents; and |
(B) | unless it has received notice of revocation, that those instructions have not been revoked; and |
(iii) | rely on a certificate from any person: |
(A) | as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
(B) | to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
(b) | The Security Agent may assume (unless it has received notice to the contrary in its capacity as security agent for the Secured Parties) that: |
(i) | no Default has occurred; |
(ii) | any right, power, authority or discretion vested in any Party or any group of Finance Parties 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 Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. |
(d) | Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by the Facility Agent or the Lenders) if the Security Agent in its reasonable opinion deems this to be desirable. |
(e) | The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the |
(f) | The Security Agent may act in relation to the Finance Documents and the Security Property through its officers, employees and agents and shall not: |
(i) | be liable for any error of judgment made by any such person; or |
(ii) | be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, |
(g) | Unless a Finance Document expressly provides otherwise the Security Agent may disclose to any other Party any information it reasonably believes it has received as security agent under the Finance Documents. |
(h) | 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. |
(i) | Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. |
(a) | the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Facility Agent, the Security Agent, the Mandated Lead Arrangers, an Obligor 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 or 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; or |
(c) | any determination as to whether any information provided or to be provided to any Secured 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) | whether or not any Default has occurred; |
(b) | as to the performance, default or any breach by any Obligor of its obligations under any Finance Document; or |
(c) | whether any other event specified in any Finance Document has occurred. |
(a) | Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent or any Receiver or Delegate), none of the Security Agent nor any Receiver or Delegate will be liable for: |
(i) | any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Security Property, unless directly caused by its gross negligence or wilful misconduct; |
(ii) | exercising, or not exercising ,any right, power, authority or discretion given to it by, or in connection with, 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; or |
(iii) | any shortfall which arises on the enforcement or realisation of the Security Property; or |
(iv) | without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of: |
(A) | any act, event or circumstance not reasonably within its control; or |
(B) | the general risks of investment in, or the holding of assets in, any jurisdiction, |
(b) | No Party other than the Security Agent, that Receiver or that Delegate (as applicable) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act. |
(c) | 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 the Security Agent if the Security 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 Security Agent for that purpose. |
(d) | Nothing in this Agreement shall oblige the Security Agent to carry out: |
(i) | any "know your customer" or other checks in relation to any person; or |
(ii) | any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Finance Party, |
(e) | Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security Agent, any Receiver or Delegate arising under or in connection with any Finance Document or the Security Property shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Security Agent, Receiver or Delegate or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Security Agent, any Receiver or Delegate at any time which increase the amount of that loss. In no event shall the Security Agent, any Receiver or Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Security Agent, the Receiver or Delegate has been advised of the possibility of such loss or damages. |
(a) | Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document). |
(b) | Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above. |
(c) | Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor. |
(a) | The Security Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrower. |
(b) | Alternatively, the Security 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 Security Agent. |
(c) | If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent may appoint a successor Security Agent. |
(d) | The retiring Security Agent shall 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. The Borrower shall, within three Business Days of demand, reimburse the retiring Security Agent for the amount of all costs and expenses (including legal fees) |
(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 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 30.23 (Winding up of trust) and paragraph (d) above) but shall remain entitled to the benefit Clause 14.5 (Indemnity to the Security Agent) and this Clause 30 (The Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude its liability (or to indemnify it) in acting as Security Agent. Any fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). 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 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) | In acting as Security Agent for the Finance Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments. |
(b) | If information is received by a division or department of the Security Agent other than the division or department responsible for complying with the obligations assumed by it under the Finance Documents, that information may be treated as confidential to that division or department, and the Security Agent shall not be deemed to have notice of it nor shall it be obliged to disclose such information to any Party. |
(a) | the financial condition, status and nature of each member of the Group; |
(b) | the legality, validity, effectiveness, adequacy or 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 Finance 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 |
(d) | the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party 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 Finance Document 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 law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security; |
(d) | take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or |
(e) | require any further assurance in relation to any Transaction Security. |
(a) | The Security Agent shall not be obliged: |
(i) | to insure any of the Charged Property; |
(ii) | to require any other person to maintain any insurance; or |
(iii) | to verify any obligation to arrange or maintain insurance contained in any Finance Document, |
(b) | Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of 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 acting on the instructions of the Majority Lenders request it to do so in writing and the Security Agent fails to do so within 14 days after receipt of that request. |
(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 right, power, authority or discretion vested in it in its capacity as such. |
(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. |
(c) | No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of any 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: |
(i) | if it considers that appointment to be in the interests of the Secured Parties; or |
(ii) | for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or |
(iii) | for obtaining or enforcing any judgment in any jurisdiction, |
(b) | Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given 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) | all of the Secured Liabilities and all other obligations secured by the Transaction Security have been fully and finally discharged; and |
(b) | no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents, |
(i) | 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 Transaction Security; and |
(ii) | any Security Agent which has resigned pursuant to Clause 30.13 (Resignation of the Security Agent) shall release, without recourse or warranty, all of its rights under each Transaction Security. |
(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 (for the purposes of this Clause 30, the "Recoveries") 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 14.5 (Indemnity to the Security Agent) or any other indemnity in favour of the Security Agent under the Finance Documents 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. |
(c) | Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Agent. |
(d) | The Security Agent is under no obligation to make the payments to the Facility Agent under paragraph (a) of this Clause 30.26 (Application of receipts) in the same currency as that in which the obligations and liabilities owing to the relevant Finance Party are denominated. |
(a) | Before transferring any moneys to the Facility Agent under Clause 30.26 (Application of receipts), the Security Agent may, in its discretion: |
(i) | deduct any sum then due and payable under this Agreement or any other Finance Documents to the Security Agent or any Receiver or Delegate and retain that sum for itself or, as the case may require, pay it to another person to whom it is then due and payable; |
(ii) | set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of Taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and |
(iii) | pay all Taxes which may be assessed against it in respect of any of the Security Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement). |
(b) | For the purposes of sub-paragraph (i) 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) | any sum to the Security Agent, any Receiver or any Delegate; and |
(b) | any part of the Secured Liabilities, |
(a) | For the purpose of, or pending the discharge of, any of the Secured Liabilities the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange. |
(b) | The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
(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: |
(i) | any securities issued or to be issued by any Obligor or any other person; or |
(ii) | any options or other derivatives in connection with such securities; and |
(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) | Each Kexim Guaranteed Lender appoints the Kexim Guarantee Agent to act as its agent under and in connection with the Kexim Guarantee and the Finance Documents. |
(b) | Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Kexim Guarantee Agent under, or in connection with, the Kexim Guarantee and the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
(c) | The Kexim Guarantee Agent shall promptly forward to each Kexim Guaranteed Lender the original or a copy of any document which is delivered to the Kexim Guarantee Agent for that Kexim Guaranteed Lender by any other Party or by the Kexim Guarantor. |
(d) | Except where the Kexim Guarantee or a Finance Document specifically provides otherwise, the Kexim Guarantee Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
(e) | Each Kexim Guaranteed Lender authorises the Kexim Guarantee Agent to consult with the Kexim Guarantor (where necessary) in relation to waivers, consents or approvals under or pursuant to the Finance Documents, including but not limited to any amendment, modification or waiver which: |
(i) | varies the dates for, or increases the amount of, or changes the currency or the priority of, any payment of any amount under the Finance Documents; |
(ii) | amends, extends or waives any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) of Clause 4.2 (Further conditions precedent) of the Facilities Agreement; or |
(iii) | imposes a new obligation on the Kexim Guarantor, or increases an existing obligation of the Kexim Guarantor under the Kexim Guarantee or any other Finance Document, |
(f) | The Kexim Guarantee Agent's duties under the Kexim Guarantee and the Finance Documents are solely mechanical and administrative in nature and the Kexim Guarantee Agent shall have no duties or obligations as agent other than those expressly conferred on it by the Finance Documents. |
(g) | Nothing in this Agreement or any Finance Document shall permit or oblige any Kexim Guaranteed Lender or the Kexim Guarantee Agent to act (or omit to act) in a manner that is inconsistent with any requirement under or in connection with the Kexim Guarantee. |
(h) | In case of any conflict between the Finance Documents and the Kexim Guarantee, the Kexim Guarantee shall, as between the Kexim Guaranteed Lenders and the Kexim Guarantor, prevail, and to the extent of such conflict or inconsistency, none of the Kexim Guaranteed Lenders or the Kexim Guarantee Agent shall assert to the Kexim Guarantor, the terms of the relevant Finance Documents. |
(a) | no information provided by it in writing to the Kexim Guarantee Agent or to the Kexim Guarantor prior to the date of this Agreement was untrue or incorrect in any material respect except to the extent that it, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission; |
(b) | it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the Kexim Guarantee Agent being in breach of any of its obligations in its capacity as Kexim Guarantee Agent under the Kexim Guarantee or any of the Finance Documents, or result in the Kexim Guaranteed Lenders being in breach of any of their respective obligations as insured parties under the Kexim Guarantee, or which would otherwise prejudice the Kexim Guarantee Agent's ability to make a claim on behalf of the Kexim Guaranteed Lenders under the Kexim Guarantee; |
(c) | it has reviewed the Kexim Guarantee and is aware of its provisions; and |
(d) | the representations and warranties made by the Kexim Guarantee Agent on its behalf under the Kexim Guarantee are true and correct with respect to it in all respects. |
(a) | All communication between the Kexim Guaranteed Lenders and the Kexim Guarantor shall be carried out through the Kexim Guarantee Agent. |
(b) | Each Kexim Guaranteed Lender acknowledges and agrees that it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with the Kexim Guarantee except through the Kexim Guarantee Agent and that all of the rights of the Kexim Guaranteed Lenders under the Kexim Guarantee shall only be exercised by the Kexim Guarantee 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. |
(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, that Obligor or Lender shall make an amount equal to such payment available to the Facility Agent (unless a contrary indication appears in a Finance Document) 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 (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Facility Agent) and with such bank as the Facility Agent, in each case, 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) | Unless paragraph (c) below applies, 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. |
(c) | If the Facility Agent is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Facility Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower: |
(i) | the Borrower shall on demand refund it to the Facility Agent; and |
(ii) | the Lender by whom those funds should have been made available or, if the Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Facility Agent the amount (as certified by the Facility Agent) which will indemnify the Facility Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. |
(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, except for the Hedging Agreements; |
(ii) | secondly, in retention by the Security Agent of an amount equal to any amount not then payable under any Finance Document (except for the Hedging Agreements) 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; |
(iii) | thirdly, in or towards payment of any sum due but unpaid under the Hedging Agreements; and |
(iv) | lastly, 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 due but unpaid Kexim Guarantee Premium and 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 29.12 (Lenders' indemnity to the Facility Agent) or Clause 30.12 (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) | The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in subparagraphs (i) to (vi) of paragraph (b) above. |
(d) | Paragraphs (a), (b) and (c) above will override any appropriation made by an Obligor. |
(a) | Any payment under the Finance Documents 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) and (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) | For the purpose of, or pending any payment to be made by any Servicing Bank under any Finance Document, such Servicing Bank may convert any moneys received or recovered by it from one currency to another, at a market rate of exchange. |
(b) | The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
(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 and any Obligors 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 to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 34.11 (Disruption to Payment Systems etc.); 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 (the Guarantors) 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 connection with the Finance Documents will only be effective: |
(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. |
(e) | Each Party confirms that it is aware of (i) the fact that information by way of electronic exchange is transmitted unencrypted over a publicly accessible network, and (ii) the risks connected therewith (including but not limited to the risk that a "bank relation" (as such term is used in the context of Swiss banking secrecy legislation) could be identified). |
(a) | Any notice given under or in connection with any Finance Document must be in English. |
(b) | All other documents provided under or in connection with any Finance Document must be: |
(i) | in English; or |
(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 (observing the procedure set out in paragraph (e) of Clause 31.1 (Appointment and duties of Kexim Guarantee Agent)) 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). |
(a) | An amendment or waiver that has the effect of changing or which relates to: |
(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 27 (Changes to the Lenders) or Clause 34.5 (Application of receipts; partial payments); |
(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 7.7 (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) | An amendment or waiver which relates to the rights or obligations of a Servicing Bank, the Kexim Guarantee Agent, 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, the Kexim Guarantee Agent, a Hedge Counterparty or, as the case may be, the Mandated Lead Arranger. |
(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; |
(b) | to any person: |
(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 Affiliates, Representatives and professional advisers; |
(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 person appointed under paragraph (c) of Clause 29.15 (Relationship with the other Finance Parties)); |
(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 27.8 (Security over Lenders' rights); |
(viii) | who is a Party; or |
(ix) | with the consent of a Guarantor; |
(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 |
(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 may without the prior consent of any Obligor publish key information concerning the Kexim 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 Kexim, the name of the Parties and their country of residence, the name of the Builder, the type of drillship, the date of this Agreement and the issuance of the Kexim Guarantee. |
(f) | Without prejudice to the above, the Borrower will procure that each Obligor (and its successors) hereby releases each Finance Party and its Affiliates, and each Finance Party hereby releases the other Finance Parties and their Affiliates from any confidentiality obligations and restrictions based on applicable Swiss bank secrecy rules with regard to any data and information relating to this Agreement, the other Finance Documents and the exercise of the respective rights or fulfilment of the respective obligations of each Finance Party. |
(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
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
56858
|
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. (the Parent)
|
Marshall Islands
|
27330
|
c/o Ocean Rig UDW Inc.,
Cyprus office,
10 Skopa street,
Nicosia, Cyprus
|
Drillship Alonissos Owners Inc. (the Drillship Owner)
|
Marshall Islands
|
56857
|
c/o Ocean Rig UDW Inc.,
Cyprus office,
10 Skopa street,
Nicosia, Cyprus
|
Name of Lender
|
Commitment
|
Address for Communication
|
THE ORIGINAL COMMERCIAL LENDERS
|
||
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
|
SGTS 33, Attn. Joerg Remde
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: Joerg Remde / George Tzelepis, Ship Finance
E-mail: joerg.remde@credit-suisse.com / george.tzelepis@credit-suisse.com
Tel: +41 61 266 7494 / +41 61 266 7895
Fax: +41 61 266 7939
Administration matters:
SGTS 33, Attn. Joerg Remde
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: Joerg Remde, Ship
Finance /Client services E-mail: joerg.remde@credit-suisse.com
Tel: +41 61 266 7494
Fax: +41 61 266 7939 Rollover, fees and payments:
SGTS 33, Attn. Edina Aganovic
St. Alban-Graben 1-3,
P.O. Box, CH-4002 Basel, Switzerland
Attention: Edina Aganovic / Tobias Winkelmann, Ship Finance / Financial Services
E-mail: edina.aganovic@credit-suisse.com / tobias.winkelmann@credit-suisse.com
Tel: +41 61 266 74 90
Fax: +41 61 266 7939 |
DNB Bank ASA
|
USD 65,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P O Box 1600 Sentrum Bjørvika
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 |
DVB Bank SE (Amsterdam Branch)
|
USD 65,000,000
|
Credit matters:
|
DVB Bank SE, Ballindamm 6, 20095
Hamburg, Germany
Attention: Jens Taubken, Offshore Finance
E-mail: Jens.Taubken@dvbbank.com
Tel: +49 40 3080 0427
Fax: +49 40 3080 0412 Mobile: +49 174 184 0413 Administration matters:
DVB Bank SE, WTC Schiphol Tower F 6th
Floor, Schiphol Boulevard 255,
1118 BH Schiphol, The Netherlands
Attention: Imogen Hall/Sona Krijger-Dolbakyan,
Transaction and Loan Services
E-mail: TM.amsterdam-hamburg@dvbbank.com
Tel: +44 207 2564 446 / +31 88 399 7927
Fax: +44 207 2564 352 / +31 88 299 8163
Rollover, fees and payments:
DVB Bank SE, Park House,
16-18 Finsbury Circus,
London EC2M 7EB, United Kingdom
Attention: Adam Liley, Transaction and Loan
Services
E-mail: tls.london@dvbbank.com
Tel: +44 207 2564 390
Fax: +44 207 2564 352 |
||
Norddeutsche Landesbank Girozentrale
|
USD 15,000,000
|
Credit matters:
|
Friedrichswall 10, 30159 Hannover, Germany
Attention: Mrs. Corinna Welke, Shipping &
Aircraft Finance Dept.
E-mail: corinna.welke@web.de
Tel: +49 511 361 6848
Fax: +49 511 361 4785 Administration matters:
Friedrichswall 10, 30159
Hannover, Germany
Attention: Mr. Stefan Schulz, Shipping &
Aircraft Finance Dept.
E-mail: stefan.schulz@nordlb.de
Tel: +49 511 361 5584
Fax: +49 511 361 4785 Rollover, fees and payments:
Friedrichswall 10, 30159
Hannover, Germany
Attention: Mr. Andre Schulz, Shipping &
Aircraft Finance Dept.
E-mail: andre.schulz@nordlb.de
Tel: +49 511 361 5334
Fax: +49 511 361 4785 |
Total Commercial Facility Loan Commitment: USD 175,000,000
|
||
THE ORIGINAL KEXIM GUARANTEED LENDERS
|
||
DNB Bank ASA
|
USD 95,000,000
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
P O Box 1600 Sentrum Bjørvika
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 |
Credit Suisse AG
|
USD 30,000,000
|
Credit matters:
|
SGTE1 Attn. Ursula Rickli
Uetlibergstr. 231
CH-8045 Zurich Attention: Ursula Rickli /Markus Jakobsson,
Export Finance
E-mail: ursula.rickli@credit-suisse.com /
markus.jakobsson@credit–suisse.com
Tel: +41 44 333 53 56 /+41 44 333 53 38
Fax: +41 44 333 21 04
Mobile: +41 79 576 1648
Administration matters:
SGTE1 Attn. Gereon Stelzle
Uetlibergstr. 231
CH-8045 Zurich
Attention: Gereon Stelzle, Export Finance,
Portfolio Administration
E-mail: portfolio.admin@credit-suisse.com
Tel: + 41 44 333 85 36
Fax: +41 44 333 21 04 Rollover, fees and payments:
SGTE1 Attn. Attila Baumgartner
Uetlibergstr. 231
CH-8045 Zurich
Attention: Attila Baumgartner, Export
Finance, Client Services
E-mail: cp-exfi.cso@credit-suisse.com
Tel: +41 44 333 63 91
Fax: +41 44 333 79 80 |
Total Kexim Guaranteed Facility Loan Commitment: USD 125,000,000
|
||
KEXIM
|
||
The Export–Import Bank of Korea
|
USD 175,000,000
|
BIFC 20th floor, Munhyeongeumyung-ro 40,
Nam-gu, Busan 608-828,
Korea
Attention: Mr. Seungheon Baek / Ms. Mibo Ahn,
Maritime Project Finance Department
E-mail: shbaek@koreaexim.go.kr / miboahn@koreaexim.go.kr
Tel: +82-51-922-8838 / +82-51-922-8837
Fax: +82-51-922-8849
Mobile: +82-10-8842-3462 / +82-10-88722889
|
Total Kexim Direct Facility Loan Commitment: USD 175,000,000
|
Facility Agent
|
Address for Communication
|
DNB Bank ASA
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
|
P O Box 1600 Sentrum Bjørvika
|
|
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
|
Dronning Eufemias gate 30,
0191 Oslo,
Norway
|
P O Box 1600 Sentrum Bjørvika
|
|
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
|
1.1 | Articles of incorporation and Certificate of incorporation (or similar). |
1.2 | By-laws (or similar) (if applicable). |
1.3 | Updated Good Standing Certificate. |
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, the 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. |
2.1 | This Agreement duly executed. |
2.2 | The Fee Letters duly executed. |
2.3 | The Hedging Agreements, if applicable. |
2.4 | The Assignment of Hedging Agreements, if applicable. |
2.5 | The Assignment of Intra-Group Loans, if applicable. |
2.6 | The Account Security duly executed, together with notices to and acknowledgements from the Account Bank. |
2.7 | 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 | Copies of the Building Contract and of all documents signed or issued by the Drillship Owner or the Builder (or both of them) under or in connection with such agreement. |
3.2 | Such documentary evidence as the Facility Agent and its legal advisers may require in relation to the due authorisation and execution by the Drillship Owner of the Building Contract and of all documents to be executed by such party. |
4.1 | A copy of the Satisfactory Drilling Contract and of all documents signed or issued under or in connection with it. |
4.2 | A certificate of an authorised signatory of the Borrower that the Satisfactory Drilling Contract is in full force and existence and that there has been no amendments to it. |
4.3 | A summary of the Satisfactory Drilling Contract prepared by legal advisors to the Finance Parties. |
4.4 | Board resolutions and powers of attorneys evidencing the due authorisation and execution by the Drillship Owner of all documents to be executed by it under or in connection with the Satisfactory Drilling Contract. |
5.1 | Evidence that any process agent referred to in Clause 46.2 (Service of process), if not an Obligor, has accepted its appointment. |
5.2 | If relevant, confirmation that any withholding tax will be paid or application to tax authorities is or will be sent. |
5.3 | 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 related document or for the validity and enforceability of any Finance Document and/or related document. |
5.4 | The Original Financial Statements and a Compliance Certificate. |
5.5 | 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. |
5.6 | 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. |
6.1 | A duly executed original of the Kexim Guarantee on terms satisfactory to the Kexim Guarantee Agent and all the Kexim Guaranteed Lenders. |
6.2 | Evidence that the first advance payment of the Kexim Guarantee Premium in relation to the Kexim Guarantee and any costs and expenses which are then due and payable to Kexim has been paid in accordance with the terms of the Kexim Guarantee. |
6.3 | A legal opinion of Kim & Chang, Korean legal advisers to the Kexim Guaranteed Lenders, in such form as agreed between that legal adviser and the Kexim Guaranteed Lenders. |
7.1 | 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. |
7.2 | The legal opinions to be delivered under paragraph 4 of Part B of this Schedule 2 (Conditions Precedent) being in agreed form. |
7.3 | 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. |
1.1 | If required, updated Good Standing Certificate for the Obligors. |
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 Assignment of Satisfactory Drilling Contract duly executed and perfected. |
2.4 | The Manager's Undertaking. |
3.1 | Documentary evidence that the Drillship: |
(a) | has been unconditionally delivered by the Builder to, and accepted by, the Drillship Owner under the Building Contract, including but not limited to a copy of the protocol of delivery and acceptance for the 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 Building 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 Drillship Owner under the Approved Flag; |
(c) | is in the absolute and unencumbered ownership of the 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 Drillship (based on valuations obtained no earlier than 30 days prior to the Delivery Date), confirming that the Loan is no more than 70 per cent. of the Market Value of the Drillship. |
4.1 | 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. |
4.2 | A legal opinion of Watson Farley & Williams LLP, legal advisers to the Finance Parties in the Marshall Islands, in such form as agreed between that legal adviser and the Finance Parties. |
4.3 | A legal opinion of Watson Farley & Williams, Paris, legal advisers to the Finance Parties in France, in such form as agreed between that legal adviser and the Finance Parties. |
4.4 | 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. |
1 | We refer to the Agreement. This is the 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 utilise the Commercial Facility Loan, Kexim Direct Facility Loan and Kexim Guaranteed Facility Loan: |
Proposed Utilisation Date:
|
[●] (or, if that is not a Business Day, the next Business Day)
|
Amount (divided pro rata across the Facilities):
|
[●] 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 (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 Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] be [●]. |
3 | This Selection Notice is irrevocable. |
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. |
(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 27.5 (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 27.4 (Limitation of responsibility of Existing Lenders) of the Agreement. |
4 | To the extent that this Transfer Certificate constitutes a novation under English law, then for the purpose of the Assignment of Satisfactory Drilling Contract governed by French law: |
(a) | the novation created by this Transfer Certificate constitutes a novation as described by article 1271 of the French Civil Code (Code Civil); and |
(b) | all security interests constituted under the Assignment of Satisfactory Drilling Contract creating security in rem (sûretés réelles) and securing the rights and obligations hereby transferred from the Existing Lender to the New Lender shall be reserved, in accordance with article 1278 of the French civil code (Code civil), to the benefit of such New Lender and shall remain in full force and effect. |
5 | 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. |
6 | Subject to paragraph 4 above, this Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law. |
7 | This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate. |
[Existing Lender]
|
|
[New Lender]
|
|
|
|
By: [●]
|
|
By: [●]
|
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [•].
[Facility Agent]
By: [●]
[Borrower]
By: [●] |
To: | DNB Bank ASA (the Facility Agent) and Drillship Alonissos Shareholders Inc. as Borrower, for and on behalf of each Obligor |
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. |
(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. |
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 27.4 (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 27.7 (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 | To the extent that this Assignment Agreement constitutes an assignment of rights and obligations under English law, then for the purpose the Assignment of Satisfactory Drilling Contract, the assignment created by this Assignment Agreement constitutes an assignment as described by article 1689 and seq. of the French Civil Code (Code civil). All security interests constituted under the Assignment of Satisfactory Drilling Contract will be perfectly assigned to the New Lender upon receipt by the Borrower of this Assignment Agreement. For the purpose of the Assignment of Satisfactory Drilling Contract, this paragraph 8 shall be governed by French law. |
9 | 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. |
10 | Subject to paragraph 8 above, this Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
11 | This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement. |
To: |
DNB Bank ASA (the Facility Agent)
|
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. |
KEXIM Facilities (MUSD)
|
||||||
Quarter from
Utilisation Date / Instalment Number |
KEXIM Direct
Facility Repayment Amt |
KEXIM Direct Facility O/S
|
KEXIM
Guaranteed Facility Repayment Amt |
KEXIM
Guaranteed Facility O/S |
KEXIM0
Facilities
Repayment Amt
|
KEXIM Facilities
Loan
Outstanding
|
0
|
175,000,000
|
125,000,000
|
-
|
300,000,000
|
||
1
|
3,645,833
|
171,354,167
|
2,604,167
|
122,395,833
|
6,250,000
|
293,750,000
|
2
|
3,645,833
|
167,708,333
|
2,604,167
|
119,791,667
|
6,250,000
|
287,500,000
|
3
|
3,645,833
|
164,062,500
|
2,604,167
|
117,187,500
|
6,250,000
|
281,250,000
|
4
|
3,645,833
|
160,416,667
|
2,604,167
|
114,583,333
|
6,250,000
|
275,000,000
|
5
|
3,645,833
|
156,770,833
|
2,604,167
|
111,979,167
|
6,250,000
|
268,750,000
|
6
|
3,645,833
|
153,125,000
|
2,604,167
|
109,375,000
|
6,250,000
|
262,500,000
|
7
|
3,645,833
|
149,479,167
|
2,604,167
|
106,770,833
|
6,250,000
|
256,250,000
|
8
|
3,645,833
|
145,833,333
|
2,604,167
|
104,166,667
|
6,250,000
|
250,000,000
|
9
|
3,645,833
|
142,187,500
|
2,604,167
|
101,562,500
|
6,250,000
|
243,750,000
|
10
|
3,645,833
|
138,541,667
|
2,604,167
|
98,958,333
|
6,250,000
|
237,500,000
|
11
|
3,645,833
|
134,895,833
|
2,604,167
|
96,354,167
|
6,250,000
|
231,250,000
|
12
|
3,645,833
|
131,250,000
|
2,604,167
|
93,750,000
|
6,250,000
|
225,000,000
|
13
|
3,645,833
|
127,604,167
|
2,604,167
|
91,145,833
|
6,250,000
|
218,750,000
|
14
|
3,645,833
|
123,958,333
|
2,604,167
|
88,541,667
|
6,250,000
|
212,500,000
|
15
|
3,645,833
|
120,312,500
|
2,604,167
|
85,937,500
|
6,250,000
|
206,250,000
|
16
|
3,645,833
|
116,666,667
|
2,604,167
|
83,333,333
|
6,250,000
|
200,000,000
|
17
|
3,645,833
|
113,020,833
|
2,604,167
|
80,729,167
|
6,250,000
|
193,750,000
|
18
|
3,645,833
|
109,375,000
|
2,604,167
|
78,125,000
|
6,250,000
|
187,500,000
|
19
|
3,645,833
|
105,729,167
|
2,604,167
|
75,520,833
|
6,250,000
|
181,250,000
|
20
|
3,645,833
|
102,083,333
|
2,604,167
|
72,916,667
|
6,250,000
|
175,000,000
|
21
|
3,645,833
|
98,437,500
|
2,604,167
|
70,312,500
|
6,250,000
|
168,750,000
|
22
|
3,645,833
|
94,791,667
|
2,604,167
|
67,708,333
|
6,250,000
|
162,500,000
|
23
|
3,645,833
|
91,145,833
|
2,604,167
|
65,104,167
|
6,250,000
|
156,250,000
|
24
|
3,645,833
|
87,500,000
|
2,604,167
|
62,500,000
|
6,250,000
|
150,000,000
|
25
|
3,645,833
|
83,854,167
|
2,604,167
|
59,895,833
|
6,250,000
|
143,750,000
|
26
|
3,645,833
|
80,208,333
|
2,604,167
|
57,291,667
|
6,250,000
|
137,500,000
|
27
|
3,645,833
|
76,562,500
|
2,604,167
|
54,687,500
|
6,250,000
|
131,250,000
|
28
|
3,645,833
|
72,916,667
|
2,604,167
|
52,083,333
|
6,250,000
|
125,000,000
|
29
|
3,645,833
|
69,270,833
|
2,604,167
|
49,479,167
|
6,250,000
|
118,750,000
|
30
|
3,645,833
|
65,625,000
|
2,604,167
|
46,875,000
|
6,250,000
|
112,500,000
|
31
|
3,645,833
|
61,979,167
|
2,604,167
|
44,270,833
|
6,250,000
|
106,250,000
|
32
|
3,645,833
|
58,333,333
|
2,604,167
|
41,666,667
|
6,250,000
|
100,000,000
|
33
|
3,645,833
|
54,687,500
|
2,604,167
|
39,062,500
|
6,250,000
|
93,750,000
|
34
|
3,645,833
|
51,041,667
|
2,604,167
|
36,458,333
|
6,250,000
|
87,500,000
|
35
|
3,645,833
|
47,395,833
|
2,604,167
|
33,854,167
|
6,250,000
|
81,250,000
|
36
|
3,645,833
|
43,750,000
|
2,604,167
|
31,250,000
|
6,250,000
|
75,000,000
|
37
|
3,645,833
|
40,104,167
|
2,604,167
|
28,645,833
|
6,250,000
|
68,750,000
|
38
|
3,645,833
|
36,458,333
|
2,604,167
|
26,041,667
|
6,250,000
|
62,500,000
|
39
|
3,645,833
|
32,812,500
|
2,604,167
|
23,437,500
|
6,250,000
|
56,250,000
|
40
|
3,645,833
|
29,166,667
|
2,604,167
|
20,833,333
|
6,250,000
|
50,000,000
|
41
|
3,645,833
|
25,520,833
|
2,604,167
|
18,229,167
|
6,250,000
|
43,750,000
|
42
|
3,645,833
|
21,875,000
|
2,604,167
|
15,625,000
|
6,250,000
|
37,500,000
|
43
|
3,645,833
|
18,229,167
|
2,604,167
|
13,020,833
|
6,250,000
|
31,250,000
|
44
|
3,645,833
|
14,583,333
|
2,604,167
|
10,416,667
|
6,250,000
|
25,000,000
|
45
|
3,645,833
|
10,937,500
|
2,604,167
|
7,812,500
|
6,250,000
|
18,750,000
|
46
|
3,645,833
|
7,291,667
|
2,604,167
|
5,208,333
|
6,250,000
|
12,500,000
|
47
|
3,645,833
|
3,645,833
|
2,604,167
|
2,604,167
|
6,250,000
|
6,250,000
|
48
|
3,645,833
|
0
|
2,604,167
|
0
|
6,250,000
|
0
|
Quarter from
Utilisation Date / Instalment Number |
Repayment Amt
|
Commercial Facility (MUSD)
Commercial
Facility Balloon
|
Commercial
Facility
Outstanding
|
Total OIS
- including
Commercial Facility Balloon |
|
0
|
- |
175,000,000
|
475,000,000 | ||
1
|
3,750,000
|
171,250,000
|
465,000,000
|
||
2
|
3,750,000
|
167,500,000
|
455,000,000
|
||
3
|
3,750,000
|
163,750,000
|
445,000,000
|
||
4
|
3,750,000
|
160,000,000
|
435,000,000
|
||
5
|
3,750,000
|
156,250,000
|
425,000,000
|
||
6
|
3,750,000
|
152,500,000
|
415,000,000
|
||
7
|
3,750,000
|
148,750,000
|
405,000,000
|
||
8
|
3,750,000
|
145,000,000
|
395,000,000
|
||
9
|
3,750,000
|
141,250,000
|
385,000,000
|
||
10
|
3,750,000
|
137,500,000
|
375,000,000
|
||
11
|
3,750,000
|
133,750,000
|
365,000,000
|
||
12
|
3,750,000
|
130,000,000
|
355,000,000
|
||
13
|
3,750,000
|
126,250,000
|
345,000,000
|
||
14
|
3,750,000
|
122,500,000
|
335,000,000
|
||
15
|
3,750,000
|
118,750,000
|
325,000,000
|
||
16
|
3,750,000
|
115,000,000
|
315,000,000
|
||
17
|
3,750,000
|
111,250,000
|
305,000,000
|
||
18
|
3,750,000
|
107,500,000
|
295,000,000
|
||
19
|
3,750,000
|
103,750,000
|
285,000,000
|
||
20
|
3,750,000
|
100,000,000
|
0 |
275,000,000
|
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 Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan]]: |
3 | [We wish to cancel [the Total Commitments] [unutilised amounts available under the [Commercial Facility Loan / Kexim Direct Facility Loan / Kexim Guaranteed Facility Loan] in an amount of [•] (in relation to any voluntary cancellation being an amount of minimum USD 10,000,000)]. |
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of the Utilisation Request))
|
Three Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of the Utilisation Request)) or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
|
Delivery of a duly completed Selection Notice (Clause 9.1 (Selection of Interest Periods))
|
Three Business Days before the expiry of the preceding Interest Period (Clause 9.1 (Selection of Interest Periods))
|
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation)
|
Three Business Days before the intended Utilisation Date or, if funds are to be pre-positioned with the Builder's bank in accordance with Clause 5.8 (Prepositioning of funds), three Business Days before the intended day of such pre-positioning of funds.
|
LIBOR is fixed
|
Quotation Day as of 11:00 am London time
|
OCEAN RIG UDW INC, M.I.
|
||
100%
|
|
|
DRILLSHIP ALONISSOS
SHAREHOLDERS INC, M.I.
|
||
100%
|
|
|
DRILLSHIP ALONISSOS
OWNERS INC, M.I.
|
||
|
|
|
OCEAN RIG APOLLO
|
|
BORROWER
|
|||
SIGNED by Dimitrios Glynos
|
)
|
||
duly authorised
|
)
|
||
for and on behalf of
|
)
|
/s/ Dimitrios Glynos
|
|
DRILLSHIP ALONISSOS SHAREHOLDERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Anastasia G. Pavli
|
)
|
||
Witnesss' name: Anastasia G. Pavli
|
)
|
||
Witness' address:
|
Attorney-at-Law
52, Ag Konstantinou Street – 151 24 Marousi
Athens Greence
Tel.: +30 210 6140580
|
)
|
GUARANTOR and PARENT
|
|||
SIGNED by Dimitrios Glynos
|
)
|
||
duly authorised
|
)
|
/s/ Dimitrios Glynos
|
|
for and on behalf of
|
)
|
||
OCEAN RIG UDW INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Anastasia G. Pavli
|
)
|
||
Witnesss' name: Anastasia G. Pavli
|
)
|
||
Witness' address:
|
Attorney-at-Law
52, Ag Konstantinou Street – 151 24 Marousi
Athens Greence
Tel.: +30 210 6140580
|
)
|
GUARANTOR and DRILLSHIP OWNER
|
|||
SIGNED by Dimitrios Glynos
|
)
|
||
duly authorised
|
)
|
/s/ Dimitrios Glynos
|
|
for and on behalf of
|
)
|
||
DRILLSHIP ALONNISSOS OWNERS INC.
|
)
|
||
in the presence of:
|
)
|
||
Witness' signature: /s/ Anastasia G. Pavli
|
)
|
||
Witnesss' name: Anastasia G. Pavli
|
)
|
||
Witness' address:
|
Attorney-at-Law
52, Ag Konstantinou Street – 151 24 Marousi
Athens Greence
Tel.: +30 210 6140580
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK ASA
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
CREDIT SUISSE AG
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DVB BANK SE (AMSTERDAM BRANCH)
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK ASA.
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
CREDIT SUISSE AG
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
THE EXPORT-IMPORT BANK OF KOREA
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK ASA
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK SE (AMSTERDAM BRANCH)
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK ASA
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK SE (AMSTERDAM BRANCH)
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK ASA
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK ASA
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
SIGNED by
|
)
|
Ida Marie Oedegaard
|
|
duly authorised
|
)
|
/s/ Ida Marie Oedegaard
|
|
for and on behalf of
|
)
|
Attorney-in-Fact
|
|
DNB BANK ASA
|
)
|
||
in the presence of: Catherine Killeen
|
)
|
||
Witness' signature: /s/ Catherine Killeen
|
)
|
||
Witnesss' name: Catherine Killeen
|
)
|
||
Witness' address:
|
Trainee Solicitor
15 Appold Street
London EC2A 2HB
|
)
|
1.
|
DEFINITIONS
|
4
|
||
2.
|
APPOINTMENT AND AUTHORISATION
|
5
|
||
3.
|
SCOPE OF WORK ADMINISTRATIVE SERVICES
|
6
|
||
3.1.
|
Finance / Treasury
|
6
|
||
3.1.1
|
Management of monies
|
6
|
||
3.1.2
|
Income collection
|
6
|
||
3.1.3
|
Use of monies received
|
7
|
||
3.1.4
|
Payment of wages, etc.
|
7
|
||
3.2
|
Accounting, financial and reporting
|
7
|
||
3.2.1
|
General
|
7
|
||
3.2.2
|
Monthly reports
|
7
|
||
3.2.3
|
Annual reports
|
8
|
||
3.2.4
|
Budgets
|
8
|
||
3.3
|
Other administrative services
|
8
|
||
3.4
|
Other reports
|
8
|
||
4.
|
SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
|
8
|
||
4.1.
|
General Manager Responsibilities
|
8
|
||
4.2
|
Marketing and Employment
|
9
|
||
4.3
|
Insurance
|
10
|
||
4.3.1
|
General
|
10
|
||
4.3.2
|
Additional or alternative insurances
|
10
|
||
4.3.3
|
Employer's liability insurance
|
10
|
||
4.3.4
|
Insurance Claims
|
11
|
||
5.
|
SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES
|
11
|
||
5.1
|
Personnel
|
11
|
||
5.2
|
Technical assistance
|
12
|
||
5.3
|
Change of registry
|
12
|
||
5.4
|
Environment, safety and compliance with law
|
12
|
||
5.5
|
Quality Assurance
|
12
|
||
5.6
|
Reporting of events
|
12
|
||
6.
|
MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
|
13
|
||
7.
|
MANAGEMENT FEE
|
13
|
||
7.1
|
The Management Fee
|
13
|
||
7.2
|
Cost base for Management Fee
|
13
|
||
7.3
|
Preliminary Fee: calculation and payment
|
14
|
||
7.4
|
Settlement of Management Fee
|
14
|
7.5
|
Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
|
||
8.
|
OWNER'S EQUIPMENT
|
15
|
||
9.
|
EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
|
15
|
||
10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
|
16
|
||
11.
|
TAXES
|
16
|
||
12.
|
CONSULTATION
|
16
|
||
13.
|
DURATION AND TERMINATION
|
16
|
||
13.1
|
Duration
|
16
|
||
13.2
|
Termination
|
16
|
||
13.3
|
Effect of termination
|
17
|
||
14.
|
AUDIT AND ATTENDANCE / SUPERVISION
|
17
|
||
14.1
|
Audit
|
17
|
||
14.2
|
Attendance / Supervision
|
17
|
||
15.
|
ASSIGNMENT
|
17
|
||
16.
|
EXCLUSION OF SET OFF
|
17
|
||
17.
|
INDEMNITY
|
18
|
||
18.
|
FORCE MAJEURE
|
18
|
||
19.
|
SURVIVAL OF PROVISIONS
|
18
|
||
20.
|
COUNTERPARTS
|
18
|
||
21.
|
MODIFICATION OF AGREEMENT
|
18
|
||
22.
|
CONFIDENTIALITY
|
19
|
||
23.
|
GOVERNING LAW
|
19
|
||
24.
|
ARBITRATION
|
19
|
1. | Drillship Kythnos Owners Inc. of Marshall Islands, having its registered offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"); and |
2. | Ocean Rig Management Inc., having its registered offices at Trust Company Complex, P eltake Road, Ajeltake Island, Majuro, Marshall Islands also maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue GR-15125, Marousi, Greece, pursuant to Law 89/67, as amended (the "Manager"), |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner will be the registered owner of the drilling ship Hull 2032 tbn "Ocean Rig Athena" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
3.1.1 | Management of monies |
3.1.2 | Income collection |
3.1.3 | Use of monies received |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel; |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.1.4 | Payment of wages, etc. |
3.2 | Accounting, financial and reporting |
3.2.1 | General |
3.2.2 | Monthly reports |
3.2.3 | Annual reports |
3.2.4 | Budgets |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below). Whereas the Manager is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the expression "Legal Proceedings" shall include arbitration, civil, regulatory and criminal proceedings of all kinds. The handling of all such claims and legal matters shall always be consistent with the instructions and requirements of the Vessels' Protection & Indemnity (P&I) club, Hull underwriters, or other insurers. |
4.2 | Marketing and Employment |
(i) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in |
4.3 | Insurance |
4.3.1 | General |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) • both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
4.3.2 | Additional or alternative insurances |
4.3.3 | Employer's liability insurance |
4.3.4 | Insurance Claims |
5. | SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents; |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract; or in the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value. of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fit with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel. A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
Ocean Rig Management
|
Drillship Kythnos Owners Inc.
|
|
By: /s/ John Mayl | By: /s/ Dr. Adriano Cefai | |
DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALLETTA VLT 1171
|
DIRECTOR
MARE SERVICES LTD
5/1 MERCHANTS STREET
VALLETTA 1171
|
|
Mr. John Mayl
|
Dr. Adriano Cefai
|
|
Director of OMEGA SERVICES LIMITED
|
Director of MARE SERVICES LIMITED
|
|
Sole Director of Ocean Rig Management
|
Sole Director of Drillship Kythnos Owners Inc.
|
|
1.
|
DEFINITIONS
|
4
|
||
2.
|
APPOINTMENT AND AUTHORISATION
|
5
|
||
3.
|
SCOPE OF WORK: ADMINISTRATIVE SERVICES
|
6
|
||
3.1.
|
Finance / Treasury
|
6
|
||
3.1.1
|
Management of monies
|
6
|
||
3.1.2
|
Income collection
|
6
|
||
3.1.3
|
Use of monies received
|
6
|
||
3.1.4
|
Payment of wages, etc.
|
7
|
||
3.2
|
Accounting, financial and reporting
|
7
|
||
3.2.1
|
General
|
7
|
||
3.2.2
|
Monthly reports
|
7
|
||
3.2.3
|
Annual reports
|
7
|
||
3.2.4
|
Budgets
|
8
|
||
3.3
|
Other administrative services
|
8
|
||
3.4
|
Other reports
|
8
|
||
4.
|
SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
|
8
|
||
4.1
|
General Manager Responsibilities
|
8
|
||
4.2
|
Marketing and Employment
|
9
|
||
4.3
|
Insurance
|
10
|
||
4.3.1
|
General
|
10
|
||
4.3.2
|
Additional or alternative insurances
|
10
|
||
4.3.3
|
Employer's liability insurance
|
10
|
||
4.3.4
|
Insurance Claims
|
10
|
||
5.
|
SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES
|
11
|
||
5.1
|
Personnel
|
11
|
||
5.2
|
Technical assistance
|
12
|
||
5.3
|
Change of registry
|
12
|
||
5.4
|
Environment, safety and compliance with law
|
12
|
||
5.5
|
Quality Assurance
|
12
|
||
5.6
|
Reporting of events
|
12
|
||
6.
|
MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
|
13
|
||
7.
|
MANAGEMENT FEE
|
13
|
||
7.1
|
The Management Fee
|
13
|
||
7.2
|
Cost base for Management Fee
|
13
|
||
7.3
|
Preliminary Fee: calculation and payment
|
14
|
||
7.4
|
Settlement of Management Fee
|
14
|
7.5
|
Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
|
|
8.
|
OWNER'S EQUIPMENT
|
15
|
|
9.
|
EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
|
15
|
|
10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
|
15
|
|
11.
|
TAXES
|
16
|
|
12.
|
CONSULTATION
|
16
|
|
13.
|
DURATION AND TERMINATION
|
16
|
|
13.1
|
Duration
|
16
|
|
13.2
|
Termination
|
16
|
|
13.3
|
Effect of termination
|
16
|
|
14.
|
AUDIT AND ATTENDANCE / SUPERVISION
|
17
|
|
14.1
|
Audit
|
17
|
|
14.2
|
Attendance / Supervision
|
17
|
|
15.
|
ASSIGNMENT
|
17
|
|
16.
|
EXCLUSION OF SET OFF
|
17
|
|
17.
|
INDEMNITY
|
17
|
|
18.
|
FORCE MAJEURE
|
18
|
|
19.
|
SURVIVAL OF PROVISIONS
|
18
|
|
20.
|
COUNTERPARTS
|
18
|
|
21.
|
MODIFICATION OF AGREEMENT
|
18
|
|
22.
|
CONFIDENTIALITY
|
18
|
|
23.
|
GOVERNING LAW
|
19
|
|
24.
|
ARBITRATION
|
19
|
|
1. | Dríllship Hydra Owners Inc. of Marshall Islands, having its principal executive offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"); and |
2. | Ocean Rig Management Inc., a company incorporated and existing under the laws of Marshall Islands of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall islands, with maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue, GR-151 25 Marausi, Athens Greece (the "Manager"), collectively referred to as the "Parties". |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner is the registered owner of the drilling ship "Ocean Rig Corcovado" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
3. | SCOPE OF WORK: ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and Indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel; |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(íx) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.2 | Accounting, financial and reporting |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owners board approval (see sub-Clause 4.2 (viii) below). Whereas the Manager is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may Fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Managers obligations under the Agreement and that the Managers right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in sate places /areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment |
(iv) | To carry out all necessary communications with clients |
(v) | To Invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(i) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management.. |
(ii) | The marketing plan shall identity potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments, |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shalt have full liberty to withhold. The Manager shall in due time furnish the Owner with al! information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall- be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the kid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate, |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and (or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time Incidents; |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract; or in the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e,g, any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs If exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
C. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b. | the part of the actual Operating Costs Incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and Insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fit with liberty to appoint any associated company in any such capacity; |
(íi) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel. A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
OCEAN RIG MANAGEMENT INC.
|
Drillship Hydra Owners Inc.
|
|
/s/ Dr. Adriano Cefai
DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALETTA VLT 1171
|
/s/ Elpiniki Fotiou
|
|
OMEGA SERVICES LIMITED -
|
ELPINIKI FOTIOU - Director
|
|
Sole Director
|
||
1.
|
DEFINITIONS
|
4
|
||
2.
|
APPOINTMENT AND AUTHORISATION
|
5
|
||
3.
|
SCOPE OF WORK: ADMINISTRATIVE SERVICES
|
6
|
||
3.1.
|
Finance / Treasury
|
6
|
||
3.1.1
|
Management of monies
|
6
|
||
3.1.2
|
Income collection
|
6
|
||
3.1.3
|
Use of monies received
|
6
|
||
3.1.4
|
Payment of wages, etc.
|
7
|
||
3.2
|
Accounting, financial and reporting
|
7
|
||
3.2.1
|
General
|
7
|
||
3.2.2
|
Monthly reports
|
7
|
||
3.2.3
|
Annual reports
|
7
|
||
3.2.4
|
Budgets
|
8
|
||
3.3
|
Other administrative services
|
8
|
||
3.4
|
Other reports
|
8
|
||
4.
|
SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
|
8
|
||
4.1
|
General Manager Responsibilities
|
8
|
||
4.2
|
Marketing and Employment
|
9
|
||
4.3
|
Insurance
|
10
|
||
4.3.1
|
General
|
10
|
||
4.3.2
|
Additional or alternative insurances
|
10
|
||
4.3.3
|
Employer's liability insurance
|
10
|
||
4,3.4
|
Insurance Claims
|
10
|
||
5.
|
SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES
|
11
|
||
5.1
|
Personnel
|
11
|
||
5.2
|
Technical assistance
|
12
|
||
5.3
|
Change of registry
|
12
|
||
5.4
|
Environment, safety and compliance with law
|
12
|
||
5.5
|
Quality Assurance
|
12
|
||
5.6
|
Reporting of events
|
12
|
||
6.
|
MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
|
13
|
||
7.
|
MANAGEMENT FEE
|
13
|
||
7.1
|
The Management Fee
|
13
|
||
7.2
|
Cost base for Management Fee
|
13
|
||
7.3
|
Preliminary Fee: calculation and payment
|
14
|
7.4
|
Settlement of Management Fee
|
14
|
|
7.5
|
Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
|
|
8.
|
OWNER'S EQUIPMENT
|
15
|
|
9.
|
EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
|
15
|
|
10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
|
15
|
|
11.
|
TAXES
|
16
|
|
12.
|
CONSULTATION
|
16
|
|
13.
|
DURATION AND TERMINATION
|
16
|
|
13.1
|
Duration
|
16
|
|
13.2
|
Termination
|
16
|
|
13.3
|
Effect of termination
|
16
|
|
14.
|
AUDIT AND ATTENDANCE / SUPERVISION
|
17
|
|
14.1
|
Audit
|
17
|
|
14.2
|
Attendance / Supervision
|
17
|
|
15.
|
ASSIGNMENT
|
17
|
|
16.
|
EXCLUSION OF SET OFF
|
17
|
|
17.
|
INDEMNITY
|
17
|
|
18.
|
FORCE MAJEURE
|
18
|
|
19.
|
SURVIVAL OF PROVISIONS
|
18
|
|
20.
|
COUNTERPARTS
|
18
|
|
21.
|
MODIFICATION OF AGREEMENT
|
18
|
|
22.
|
CONFIDENTIALITY
|
18
|
|
23.
|
GOVERNING LAW
|
19
|
|
24.
|
ARBITRATION
|
19
|
|
1. | Drillship Kithira Owners Inc. of Marshall Islands, having its principal executive offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall islands (the "Owner"); and |
2. | Ocean Rig Management Inc" a company incorporated and existing under the laws of Marshall Islands of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, with maintaining a licensed shipping office in Greece at Omega Building, 80 Kitisias Avenue, GR-151 25 Marousi, Athens Greece (the "Manager"), collectively referred to as the "Parties". |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner will be the registered owner of the drilling ship "Ocean Rig Poseidon" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2 | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK: ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
3.1.1 | Management of monies |
3.1.2 | Income collection |
3.1.3 | Use of monies received |
(í) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel; |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.1.4 | Payment of wades, etc. |
3.2 | Accounting, financial and reporting |
3.2.1 | General |
3.2.2 | Monthly reports |
3.23 | Annual reports |
3.2.4 | Budgets |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf al the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below). Whereas the Manager is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients. |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(i) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management. |
(ii) | The marketing plan shall Identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shalt have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses In order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
4.3.1 | General |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws In respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
4.3.2 | Additional or alternative insurances |
4.3.3 | Employer's liability insurance |
4.3.4 | Insurance Claims |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew Insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel it they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, sate working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents; |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event ar condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract; or in the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGERS USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | ail other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fit with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1,1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested byte Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel, A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TEAMINATiON |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
OCEAN RIG MANAGEMENT INC.
|
Drillship Kithera Owners Inc.
|
|
/s/ Dr Adriano Cefai | /s/ Elpiniki Fotiou | |
Dr Adriano Cefai
|
ELPINIKI FOTIOU - Director
|
|
DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALLETTA VLT 1171
|
||
OMEGA SERVICES LIMITED - Sole
|
||
Director
|
||
1.
|
DEFINITIONS
|
4
|
||
2.
|
APPOINTMENT AND AUTHORISATION
|
5
|
||
3.
|
SCOPE OF WORK: ADMINISTRATIVE SERVICES
|
6
|
||
3.1.
|
Finance / Treasury
|
6
|
||
3.1.1
|
Management of monies
|
6
|
||
3.1.2
|
Income collection
|
6
|
||
3.1.3
|
Use of monies received
|
6
|
||
3.1.4
|
Payment of wages, etc.
|
7
|
||
3.2
|
Accounting, financial and reporting
|
7
|
||
3.2.1
|
General
|
7
|
||
3.2.2
|
Monthly reports
|
7
|
||
3.2.3
|
Annual reports
|
7
|
||
3.2.4.
|
Budgets
|
8
|
||
3.3
|
Other administrative services
|
8
|
||
3.4
|
Other reports
|
8
|
||
4.
|
SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
|
8
|
||
4.1
|
General Manager Responsibilities
|
8
|
||
4.2
|
Marketing and Employment
|
9
|
||
4.3
|
Insurance
|
10
|
||
4.3.1
|
General
|
10
|
||
4.3.2
|
Additional or alternative insurances
|
10
|
||
4.3.3
|
Employer's liability insurance
|
10
|
||
4.3.4
|
Insurance Claims
|
10
|
||
5.
|
SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES
|
11
|
||
5.1
|
Personnel
|
11
|
||
5.2
|
Technical assistance
|
12
|
||
5.3
|
Change of registry
|
12
|
||
5.4
|
Environment, safety and compliance with law
|
12
|
||
5.5
|
Quality Assurance
|
12
|
||
5.6
|
Reporting of events
|
12
|
||
6.
|
MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
|
13
|
||
7.
|
MANAGEMENT FEE
|
13
|
||
7.1
|
The Management Fee
|
13
|
||
7.2
|
Cost base for Management Fee
|
13
|
||
7.3
|
Preliminary Fee: calculation and payment
|
14
|
||
7.4
|
Settlement of Management Fee
|
14
|
7.5
|
Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
|
|
8.
|
OWNER'S EQUIPMENT
|
15
|
|
9.
|
EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
|
15
|
|
10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
|
15
|
|
11.
|
TAXES
|
16
|
|
12.
|
CONSULTATION
|
16
|
|
13.
|
DURATION AND TERMINATION
|
16
|
|
13.1
|
Duration
|
16
|
|
13.2
|
Termination
|
16
|
|
13.3
|
Effect of termination
|
16
|
|
14.
|
AUDIT AND ATTENDANCE / SUPERVISION
|
17
|
|
14.1
|
Audit
|
17
|
|
14.2
|
Attendance / Supervision.
|
17
|
|
15.
|
ASSIGNMENT
|
17
|
|
16.
|
EXCLUSION OF SET OFF
|
17
|
|
17.
|
INDEMNITY
|
17
|
|
18.
|
FORCE MAJEURE
|
18
|
|
19.
|
SURVIVAL OF PROVISIONS
|
18
|
|
20.
|
COUNTERPARTS
|
18
|
|
21.
|
MODIFICATION OF AGREEMENT
|
18
|
|
22.
|
CONFIDENTIALITY
|
18
|
|
23.
|
GOVERNING LAW
|
19
|
|
24.
|
ARBITRATION
|
19
|
1. | Drillship Paros Owners Inc. of Marshall islands, having its principal executive offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"); and |
2. | Ocean Rig Management inc., a company Incorporated and existing under the laws of Marshall Islands of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, with maintaining a licensed shipping office in Greece at Omega Building, 80 Kiftsias Avenue, GR-151 25 Marousi, Athens Greece (the "Manager"), |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner will be the registered owner of the drilling ship "Ocean Rig Olympia" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK: ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
3.1.1 | Management of monies |
3.1.2 | Income collection |
3.1.3 | Use of monies received |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel; |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.1.4 | Payment of wanes, etc. |
3.2 | Accounting, financial and reporting |
3.2.1 | General |
3.2.2 | Monthly reports |
3.2.3 | Annual reports |
3.2.4 | Budgets |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below). Whereas the Manager is obliged to use Its best efforts to seek such employment, the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or tails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients. |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(í) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(ív) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at Its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drifting contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with ail information and documentation which the Owner needs to review and asses In order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel The Manager shall be free to operate arid market such rigs (capable of competing with the Vessel) without (imitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
4.3.1 | General |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up I stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or In financing agreements in force at any time. |
4.32 | Additional or alternative insurances |
4.3.3 | Employer's liability insurance |
4.3.4 | Insurance Claims |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that ail personnel supplied by it in connection wfth this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents; |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract; or in the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g, any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged In performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Managers organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party subcontractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 43.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5% mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7% mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7% mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5% mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a fee mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7% mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fa with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel, A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
OCEAN RIG MANAGEMENT INC.
|
Drillship Paros Owners Inc.
|
|
/s/ Dr Adriano Cefai |
/s/ Elpiniki Fotiou
|
|
Dr ADRIANO CEFAI | ELPINIKI FOTIOU - Director | |
DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALLETTA VLT 1171
|
||
OMEGA SERVICES LIMITED - Sole
|
||
Director
|
||
1.
|
DEFINITIONS
|
4
|
||
2.
|
APPOINTMENT AND AUTHORISATION
|
5
|
||
3.
|
SCOPE OF WORK: ADMINISTRATIVE SERVICES
|
6
|
||
3.1.
|
Finance / Treasury
|
6
|
||
3.1.1
|
Management of monies
|
6
|
||
3.1.2
|
Income collection
|
6
|
||
3.1.3
|
Use of monies received
|
6
|
||
3.1.4
|
Payment of wages, etc.
|
7
|
||
3.2
|
Accounting, financial and reporting
|
7
|
||
3.2.1
|
General
|
7
|
||
3.2.2
|
Monthly reports
|
7
|
||
3.2.3
|
Annual reports
|
7
|
||
3.2.4
|
Budgets
|
8
|
||
3.3
|
Other administrative services
|
8
|
||
3.4
|
Other reports
|
8
|
||
4.
|
SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
|
8
|
||
4.1
|
General Manager Responsibilities
|
8
|
||
4.2
|
Marketing and Employment
|
9
|
||
4.3
|
Insurance
|
10
|
||
4.3.1
|
General
|
10
|
||
4.3.2
|
Additional or alternative insurances
|
10
|
||
4.3.3
|
Employer's liability insurance
|
10
|
||
4.3.4
|
Insurance Claims
|
10
|
||
5.
|
SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES
|
11
|
||
5.1
|
Personnel
|
11
|
||
5.2
|
Technical assistance
|
12
|
||
5.3
|
Change of registry
|
12
|
||
5.4
|
Environment, safety and compliance with law
|
12
|
||
5.5
|
Quality Assurance
|
12
|
||
5.6
|
Reporting of events
|
12
|
||
6.
|
MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
|
13
|
||
7.
|
MANAGEMENT FEE
|
13
|
||
7.1
|
The Management Fee
|
13
|
||
7.2
|
Cost base for Management Fee
|
13
|
||
7.3
|
Preliminary Fee: calculation and payment
|
14
|
||
7.4
|
Settlement of Management Fee
|
14
|
7.5
|
Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
|
|
8.
|
OWNER'S EQUIPMENT
|
15
|
|
9.
|
EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
|
15
|
|
10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
|
15
|
|
11.
|
TAXES
|
16
|
|
12.
|
CONSULTATION
|
16
|
|
13.
|
DURATION AND TERMINATION
|
16
|
|
13.1
|
Duration
|
16
|
|
13.2
|
Termination
|
16
|
|
13.3
|
Effect of termination
|
16
|
|
14.
|
AUDIT AND ATTENDANCE / SUPERVISION
|
17
|
|
14.1
|
Audit
|
17
|
|
14.2
|
Attendance / Supervision
|
17
|
|
15.
|
ASSIGNMENT
|
17
|
|
16.
|
EXCLUSION OF SET OFF
|
17
|
|
17.
|
INDEMNITY
|
17
|
|
18.
|
FORCE MAJEURE
|
18
|
|
19.
|
SURVIVAL OF PROVISIONS
|
18
|
|
20.
|
COUNTERPARTS
|
18
|
|
21.
|
MODIFICATION OF AGREEMENT
|
18
|
|
22.
|
CONFIDENTIALITY
|
18
|
|
23.
|
GOVERNING LAW
|
19
|
|
24.
|
ARBITRATION
|
19
|
|
1. | Ocean Rig 1 Inc. of Marshall Islands, having its principal executive offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"): and |
2. | Ocean Rig Management Inc., a company incorporated and existing under the laws of Marshall Islands of Trust Company Complex, Ajeltake Road, Ajeltake island, Majuro, Marshall islands, with maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue, GR-151 25 Marousi, Athens Greece (the "Manager"), collectively referred to as the "Parties". |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner is the registered owner of the drilling unit Leiv Eiriksson (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK: ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | Insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.2 | Accounting, financial and reporting |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below), Whereas the Manager is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may fall from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising its best efforts, |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vl) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance, |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment The Manager shall carry out the following in connection with marketing and contract negotiations: |
(i) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management.. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at Its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all lenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter Into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval wilt generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time, |
5. | SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that It has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
(i) | any medical treatment of crew, as well as lost time incidents; |
(iii) | the occurrence of arty default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract or to the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, If several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4,3.2 above if exceptionally paid by the Manager with Its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee; calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs, |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % Mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUTPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as It may deem fit with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner in obtaining legal advice In relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel. A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance/ Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBiTRATION |
OCEAN RIG MANAGEMENT INC.
|
OCEAN RIG 1 INC.
|
|
/s/ Dr Adriano Cefai |
/s/ Elpiniki Fotiou
|
|
DR ADRIANO CEFAI |
ELPINIKI FOTIOU - DIRECTOR
|
|
DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALLETTA VLT 1171
|
||
OMEGA SERVICES LIMITED - Sole
|
|
|
Director
|
||
1.
|
DEFINITIONS
|
4
|
||
2.
|
APPOINTMENT AND AUTHORISATION
|
5
|
||
3.
|
SCOPE OF WORK: ADMINISTRATIVE SERVICES
|
6
|
||
3.1.
|
Finance / Treasury
|
6
|
||
3.1.1
|
Management of monies
|
6
|
||
3.1.2
|
Income collection
|
6
|
||
3.1.3
|
Use of monies received
|
6
|
||
3.1.4
|
Payment of wages, etc.
|
7
|
||
3.2
|
Accounting, financial and reporting
|
7
|
||
3.2.1
|
General
|
7
|
||
3.2.2
|
Monthly reports
|
7
|
||
3.2.3
|
Annual reports
|
7
|
||
3.2.4
|
Budgets
|
8
|
||
3.3
|
Other administrative services
|
8
|
||
3.4
|
Other reports
|
8
|
||
4.
|
SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
|
8
|
||
4.1
|
General Manager Responsibilities
|
8
|
||
4.2
|
Marketing and Employment
|
9
|
||
4.3
|
Insurance
|
10
|
||
4.3.1
|
General
|
10
|
||
4.3.2
|
Additional or alternative insurances
|
10
|
||
4.3.3
|
Employer's liability insurance
|
10
|
||
4.3.4
|
Insurance Claims
|
10
|
||
5.
|
SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES
|
11
|
||
5.1
|
Personnel
|
11
|
||
5.2
|
Technical assistance
|
12
|
||
5.3
|
Change of registry
|
12
|
||
5.4
|
Environment, safety and compliance with law
|
12
|
||
5.5
|
Quality Assurance
|
12
|
||
5.6
|
Reporting of events
|
12
|
||
6.
|
MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
|
13
|
||
7.
|
MANAGEMENT FEE
|
13
|
||
7.1
|
The Management Fee
|
13
|
||
7.2
|
Cost base for Management Fee
|
14
|
||
7.3
|
Preliminary Fee: calculation and payment
|
14
|
||
7.4
|
Settlement of Management Fee
|
7.5
|
Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
|
|
8.
|
OWNER'S EQUIPMENT
|
15
|
|
9.
|
EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
|
15
|
|
10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
|
15
|
|
11.
|
TAXES
|
16
|
|
12.
|
CONSULTATION
|
16
|
|
13.
|
DURATION AND TERMINATION
|
16
|
|
13.1
|
Duration
|
16
|
|
13.2
|
Termination
|
16
|
|
13.3
|
Effect of termination
|
16
|
|
14.
|
AUDIT AND ATTENDANCE / SUPERVISION
|
17
|
|
14.1
|
Audit
|
17
|
|
14.2
|
Attendance / Supervision
|
17
|
|
15.
|
ASSIGNMENT
|
17
|
|
16.
|
EXCLUSION OF SET OFF
|
17
|
|
17.
|
INDEMNITY
|
17
|
|
18.
|
FORCE MAJEURE
|
18
|
|
19.
|
SURVIVAL OF PROVISIONS
|
18
|
|
20.
|
COUNTERPARTS
|
18
|
|
21.
|
MODIFICATION OF AGREEMENT
|
18
|
|
22.
|
CONFIDENTIALITY
|
18
|
|
23.
|
GOVERNING LAW
|
19
|
|
24.
|
ARBITRATION
|
19
|
|
1. | Ocean Rig 2 Inc. of Marshall Islands, having its principal executive offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majura, Marshall islands (the "Owner"); and |
2. | Ocean Rig Management Inc., a company incorporated and existing under the laws of Marshall Islands of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall islands, with maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue, GR-151 25 Manaus', Athens Greece (the "Manager"), |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner is the registered owner of the drilling unit Eirik Raude (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel: |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), Incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.2 | Accounting, financial and reporting |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below), Whereas the Manager is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies Irrespective of whether the Manager, in any particular case, succeeds or fails to identity actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate Instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, Intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(i) | The Manager wit on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel; such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at Its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit, The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or it the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owners board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
a) | Hull and machinery insurance {including Owner's owned subsea and drifting equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Grew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all tunes that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents: |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract; or in the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax, |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs Incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fit with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1. to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner In obtaining legal advice in relation to disputes or other legal matters affecting the Interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel, A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance/Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
OCEAN RIG MANAGEMENT INC.
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OCEAN RIG 2 INC.
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/s/ Dr Adriano Cefai |
/s/ Elpiniki Fotiou
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Dr ADRIANO CEFAI |
ELPINIKI FOTIOU - Director
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DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALLETTA VLT 1171
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OMEGA SERVICES LIMITED - Sole
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Director
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1.
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DEFINITIONS
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4
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2.
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APPOINTMENT AND AUTHORISATION
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5
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3.
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SCOPE OF WORK: ADMINISTRATIVE SERVICES
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6
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3.1.
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Finance / Treasury
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6
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3.1.1
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Management of monies
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6
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3.1.2
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Income collection
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6
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3.1.3
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Use of monies received
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6
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3.1.4
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Payment of wages, etc.
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7
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3.2
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Accounting, financial and reporting
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7
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3.2.1
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General
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7
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3.2.2
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Monthly reports
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7
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3.2.3
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Annual reports
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7
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3.2.4
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Budgets
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8
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3.3
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Other administrative services
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8
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3.4
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Other reports
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8
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4.
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SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
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8
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4.1
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General Manager Responsibilities
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8
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4.2
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Marketing and Employment
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9
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4.3
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Insurance
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10
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4.3.1
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General
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10
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4.3.2
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Additional or alternative insurances
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10
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4.3.3
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Employer's liability insurance
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10
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4.3.4
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Insurance Claims
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10
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5.
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SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES
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11
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5.1
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Personnel
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11
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5.2
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Technical assistance
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12
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5.3
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Change of registry
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12
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5.4
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Environment, safety and compliance with law
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12
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5.5
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Quality Assurance
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12
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5.6
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Reporting of events
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12
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6.
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MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
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13
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7.
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MANAGEMENT FEE
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13
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7.1
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The Management Fee
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13
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7.2
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Cost base for Management Fee
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13
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7.3
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Preliminary Fee: calculation and payment
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14
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7.4
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Settlement of Management Fee
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14
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7.5
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Adjustment of Management Fee to satisfy transfer pricing requirements
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15
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8.
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OWNER'S EQUIPMENT
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15
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9.
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EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
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15
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10.
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LOANS BETWEEN THE OWNER AND THE MANAGER
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15
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11.
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TAXES
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16
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12.
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CONSULTATION
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16
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13.
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DURATION AND TERMINATION
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16
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13.1
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Duration
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16
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Termination
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16
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13.3
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Effect of termination
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16
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14.
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AUDIT AND ATTENDANCE / SUPERVISION
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17
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14.1
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Audit
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17
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14.2
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Attendance / Supervision
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17
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15.
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ASSIGNMENT
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17
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16.
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EXCLUSION OF SET OFF
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17
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17.
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INDEMNITY
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17
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18.
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FORCE MAJEURE
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18
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19.
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SURVIVAL OF PROVISIONS
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18
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20.
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COUNTERPARTS
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18
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21.
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MODIFICATION OF AGREEMENT
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18
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22.
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CONFIDENTIALITY
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18
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23.
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GOVERNING LAW
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19
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24.
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ARBITRATION
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19
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1. | Drillship Skiathos Owners Inc. of Marshall Islands, having its principal executive offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"); and |
2. | Ocean Rig Management Inc., a company incorporated and existing under the laws of Marshall Islands of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, with maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue, GR-151 25 Marousi, Athens Greece (the "Manager"), |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner will be the registered owner of the drilling ship "Ocean Rig Mylos" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK: ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
3.1.1 | Management of monies |
3.1.2 | Income collection |
3.1.3 | Use of monies received |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.1.4 | Payment of wages, etc. |
3.2 | Accounting, financial and reporting |
3.2.1 | General |
3.2.2 | Monthly reports |
3.2.3 | Annual reports |
3.2.4 | Budgets |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (vííí) below). Whereas the Manager is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(i) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
4.3.1 | General |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
4.3.2 | Additional or alternative insurances |
4.3.3 | Employer's liability insurance |
4.3.4 | Insurance Claims |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents; |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract in respect of the Vessel to terminate such contract; or in the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7% mark-up; |
c. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fit with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel. A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
OCEAN RIG MANAGEMENT INC.
|
Drillship Skiathos Owners Inc.
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/s/ Dr Adriano Cefai
DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALLETTA VLT 1171
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/s/ Dr. Adriano Cefai
DIRECTOR
MARE SERVICES LTD
5/1 MERCHANTS STREET
VALLETTA 1171
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OMEGA SERVICES LIMITED - Sole
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MARE SERVICES LIMITED – Sole Director
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Director
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1.
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DEFINITIONS
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4
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2.
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APPOINTMENT AND AUTHORISATION
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5
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3.
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SCOPE OF WORK: ADMINISTRATIVE SERVICES
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6
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3.1.
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Finance / Treasury
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6
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3.1.1
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Management of monies
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6
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3.1.2
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Income collection
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6
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3.1.3
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Use of monies received
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6
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3.1.4
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Payment of wages, etc.
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7
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3.2
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Accounting, financial and reporting
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7
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3.2.1
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General
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7
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3.2.2
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Monthly reports
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7
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3.2.3
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Annual reports
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7
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3.2.4
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Budgets
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8
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3.3
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Other administrative services
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8
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3.4
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Other reports
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8
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4.
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SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
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8
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4.1
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General Manager Responsibilities
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8
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4.2
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Marketing and Employment
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9
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4.3
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Insurance
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10
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4.3.1
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General
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10
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4.3.2
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Additional or alternative insurances
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10
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4.3.3
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Employer's liability insurance
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10
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4.3.4
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Insurance Claims
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10
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5.
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SCOPE OF WORK TECHNICAL MANAGEMENT SERVICES
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11
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5.1
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Personnel
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11
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5.2
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Technical assistance
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12
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5.3
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Change of registry
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12
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5.4
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Environment, safety and compliance with law
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12
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5.5
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Quality Assurance
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12
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5.6
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Reporting of events
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12
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6.
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MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
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13
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7.
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MANAGEMENT FEE
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13
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7.1
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The Management Fee
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13
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7.2
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Cost base for Management Fee
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13
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7.3
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Preliminary Fee: calculation and payment
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14
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7.4
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Settlement of Management Fee
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14
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7.5
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Adjustment of Management Fee to satisfy transfer pricing requirements
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15
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8.
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OWNER'S EQUIPMENT
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15
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9.
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EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
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15
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10.
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LOANS BETWEEN THE OWNER AND THE MANAGER
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15
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11.
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TAXES
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16
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12.
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CONSULTATION
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16
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13.
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DURATION AND TERMINATION
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16
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13.1
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Duration
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16
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13.2
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Termination
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16
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13.3
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Effect of termination
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16
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14.
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AUDIT AND ATTENDANCE / SUPERVISION
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17
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14.1
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Audit
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17
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14.2
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Attendance / Supervision
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17
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15.
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ASSIGNMENT
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17
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16.
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EXCLUSION OF SET OFF
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17
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17.
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INDEMNITY
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17
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18.
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FORCE MAJEURE
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18
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19.
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SURVIVAL OF PROVISIONS
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18
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20.
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COUNTERPARTS
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18
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21.
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MODIFICATION OF AGREEMENT
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18
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22.
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CONFIDENTIALITY
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18
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23.
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GOVERNING LAW
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19
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24.
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ARBITRATION
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19
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1. | Drillship Skopelos Owners Inc. of Marshall Islands, having its principal executive offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"); and |
2. | Ocean Rig Management Inc., a company incorporated and existing under the laws of Marshall Islands of Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall islands, with maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue, GR-151 25 Marousi, Athens Greece (the "Manager"), |
A. | The Manager has expertise In managing the operation and marketing of drilling ships; |
B. | The Owner will be the registered owner of the drilling ship "Ocean Rig Mykonos" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK; ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
3.1.1 | Management of monies |
3.1.2 | Income collection |
3.1.3 | Use of monies received |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel; |
(íi) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors in connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.1.4 | Payment of wages, etc. |
3.2 | Accounting, financial and reporting |
3.2.1 | General |
3 2.2 | Monthly reports |
3.2.3 | Annual reports |
3.2.4 | Budgets |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below). Whereas the Manager is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(íi) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places/areas as this can be established by exercising its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients |
(v) | To invoice on behalf of Owner all hires and other sums clue to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(i) | The Manager will on an ongoing basis have in place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict. |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and In accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
4.3.1 | General |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up ! stacked mode as appropriate. |
c) | Liability Insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
4.3.2 | Additional or alternative insurances |
4.3.3 | Employers liability insurance |
4.3.4 | Insurance Claims |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Grew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel in accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by it in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5,3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents; |
(iii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract In respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under art Employment Contract or any other contract in respect of the Vessel to terminate such contract; or In the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or If several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and indirect operating costs attributable to the rendering of the Services, Including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a | fees and other costs paid by the Manager with Its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5% mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7% mark-up; |
c, | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7% mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and Indirectly attributable to rendering the administrative services (see Clause 3), added a 5% mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
a | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as it may deem fit with liberty to appoint any associated company in any such capacity; |
(ií) | to engage subcontractors for the performance of specific assignments; |
(ill) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and (iv)to assist the Owner to the extent requested by the Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel, A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination. |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
15. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
Ocean Rig Management
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Drillship Skopelos Owners Inc.
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/s/ Dr Adriano Cefai
DIRECTOR
OMEGA SERVICES LIMITED
5/1 MERCHANTS STREET
VALLETTA VLT 1171
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/s/ Elpiniki Fotiou
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By: Dr. Adriano Cefai
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Elpiniki Fotiou - Director
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OMEGA SERVICES LIMITED -
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Sole Director
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1.
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DEFINITIONS
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4
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2.
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APPOINTMENT AND AUTHORISATION
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5
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3.
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SCOPE OF WORK: ADMINISTRATIVE SERVICES
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6
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3.1.
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Finance / Treasury
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6
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3.1.1
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Management of monies
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6
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3.1.2
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Income collection
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6
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3.1.3
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Use of monies received
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6
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3.1.4
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Payment of wages, etc.
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7
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3.2
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Accounting, financial and reporting
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7
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3.2.1
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General
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7
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3.2.2
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Monthly reports
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7
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3.2.3
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Annual reports
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7
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3.2.4
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Budgets
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8
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3.3
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Other administrative services
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8
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3.4
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Other reports
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8
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4.
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SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES
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8
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4.1
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General Manager Responsibilities
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8
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4.2
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Marketing and Employment
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9
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4.3
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Insurance
|
10
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4.3.1
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General
|
10
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4.3.2
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Additional or alternative insurances
|
10
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4.3.3
|
Employer's liability insurance
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10
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||
4.3.4
|
Insurance Claims
|
10
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5.
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SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES
|
11
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5.1
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Personnel
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11
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5.2
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Technical assistance
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12
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5.3
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Change of registry
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12
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5.4
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Environment, safety and compliance with law
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12
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5.5
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Quality Assurance
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12
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5.6
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Reporting of events
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12
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6.
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MANAGER'S USE OF OTHER GROUP COMPANIES AS SUB-CONTRACTORS
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13
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7.
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MANAGEMENT FEE
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13
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7.1
|
The Management Fee
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13
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7.2
|
Cost base for Management Fee
|
13
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7.3
|
Preliminary Fee: calculation and payment
|
14
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||
7.4
|
Settlement of Management Fee
|
14
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7.5
|
Adjustment of Management Fee to satisfy transfer pricing requirements
|
15
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8.
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OWNER'S EQUIPMENT
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15
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9.
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EMPLOYMENT OF AGENTS AND SUBCONTRACTORS
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15
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10.
|
LOANS BETWEEN THE OWNER AND THE MANAGER
|
15
|
|
11.
|
TAXES
|
16
|
|
12.
|
CONSULTATION
|
16
|
|
13.
|
DURATION AND TERMINATION
|
16
|
|
13.1
|
Duration
|
16
|
|
13.2
|
Termination
|
16
|
|
13.3
|
Effect of termination
|
16
|
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14.
|
AUDIT AND ATTENDANCE / SUPERVISION
|
17
|
|
14.1
|
Audit
|
17
|
|
14.2
|
Attendance / Supervision
|
17
|
|
15.
|
ASSIGNMENT
|
17
|
|
16.
|
EXCLUSION OF SET OFF
|
17
|
|
17.
|
INDEMNITY
|
17
|
|
18.
|
FORCE MAJEURE
|
18
|
|
19.
|
SURVIVAL OF PROVISIONS
|
18
|
|
20.
|
COUNTERPARTS
|
18
|
|
21.
|
MODIFICATION OF AGREEMENT
|
18
|
|
22.
|
CONFIDENTIALITY
|
18
|
|
23.
|
GOVERNING LAW
|
19
|
|
24.
|
ARBITRATION
|
19
|
1. | Drillship Alonissos Owners Inc. of Marshall Islands, having its registered offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Owner"); and |
2. | Ocean Rig Management Inc., having its registered offices at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands also maintaining a licensed shipping office in Greece at Omega Building, 80 Kifisias Avenue GR-15125, Marousi, Greece, pursuant to Law 89/67, as amended (the "Manager"), |
A. | The Manager has expertise in managing the operation and marketing of drilling ships; |
B. | The Owner will be the registered owner of the drilling ship Hull 2063 tbn "Ocean Rig Apollo" (the "Vessel"); |
C. | The Owner wishes to appoint the Manager to perform the overall management of the Vessel during the Vessel's marketing, operations and Administrative Services, and as hereinafter provided; and |
D. | The Manager accepts such appointment |
1. | DEFINITIONS |
2. | APPOINTMENT AND AUTHORISATION |
3. | SCOPE OF WORK ADMINISTRATIVE SERVICES |
3.1. | Finance / Treasury |
3.1.1 | Management of monies |
3.1.2 | Income collection |
3.1.3 | Use of monies received |
(i) | wages, recruitment expenses, social expenses, training, travelling and other employee expenses of, and costs of direct and Indirect benefits that are granted to the Crew on the Vessel and the onshore base personnel; |
(ii) | temporary Crew replacement; |
(iii) | purchase of supplies, bunkers, equipment and spare parts, storage, transport and assembling thereof; |
(iv) | catering; |
(v) | repairs and periodic overhauls and maintenance; |
(vi) | service personnel; |
(vii) | potential lay-up costs; |
(viii) | insurance premiums; |
(ix) | costs of permitted sub-contractors In connection with specific assignments and fees and expenses of agents, consultants and professional advisors (except if this Agreement provides otherwise), incurred pursuant to Clause 6 or 9; |
(x) | taxes and charges. |
3.1.4 | Payment of wages, etc. |
3.2 | Accounting, financial and reporting |
3.2.1 | General |
3.2.2 | Monthly reports |
3.2.3 | Annual reports |
3.2.4 | Budgets |
3.3 | Other administrative services |
3.4 | Other reports |
4. | SCOPE OF WORK: COMMERCIAL MANAGEMENT AND INSURANCE SERVICES |
4.1 | General Manager Responsibilities |
(i) | For marketing and shall seek and negotiate employment for the Vessel under time charter or under any other form of contract, and on behalf of the Owner, to conclude and execute any such contract, subject to the Owner's board approval (see sub-Clause 4.2 (viii) below). Whereas the Manager Is obliged to use its best efforts to seek such employment, the Owner acknowledges that such efforts may fail from time to time, that the Manager's failure to identify actual employment for the Vessel shall not constitute a breach of the Manager's obligations under the Agreement and that the Manager's right to compensation under Clause 7 applies Irrespective of whether the Manager, in any particular case, succeeds or fails to identify actual employment for the Vessel. |
(ii) | Manager will use its best efforts to ensure that the Vessel will be employed in safe places /areas as this can be established by exercising Its best efforts. |
(iii) | To arrange the scheduling of the Vessel according to the terms of the Vessel's employment. |
(iv) | To carry out all necessary communications with clients |
(v) | To invoice on behalf of Owner all hires and other sums due to Owner and accounts receivable arising from the operation of the Vessel. |
(vi) | To give receipts therefore, to make any and all claims for monies due to Owner and to issue releases upon receipt of payment of such claims and in connection with the settlement of such claims. |
(v) | To furnish the rig management of the Vessel appropriate instructions and monitor performance. |
(vi) | With prior consent of Owner, to institute, defend, intervene in, settle, compromise or abandon any legal proceedings by or against Owner or by or against the Vessel or which in any way concerns the Vessel, their freight, earnings and disbursements or concerning the crews and officers on board the Vessel and for the purposes of this clause the |
4.2 | Marketing and Employment |
(i) | The Manager will on an ongoing basis have In place a written marketing plan in respect of the marketing of the Vessel and report this regularly to Management. |
(ii) | The marketing plan shall identify potential operators or clients and oil fields world wide considered as reasonable prospects, with a view to obtaining future Employment Contracts for the Vessel. |
(iii) | The marketing plan shall be developed and updated every second month to reflect market developments. |
(iv) | Based on the marketing plan, the Manager shall market the Vessel and identify suitable drilling contract opportunities for the Vessel, such efforts to be consistent with those made by the Manager in respect to other rigs of comparable capabilities managed by it. However, the Owner may at Its own discretion instruct the Manager to enter into specific bids on the Owner's financial terms for a bona fide drilling contract directly to an oil company. |
(v) | The Manager shall keep the Owner addressed and informed about the marketing activities and new projects or business opportunities based upon the monthly marketing report. |
(vii) | The Owner agrees to co-operate to the extent reasonably required by the Manager in respect of tenders to potential clients within any reasonable time limit. The Manager shall be responsible for coordinating and preparing all tenders. |
(viii) | The Manager shall have no authority to contract or commit the Vessel on behalf of the Owner, or if the Vessel is contracted or committed no authority to enter into amendments or to cancel such contracts or commitments, without the prior written approval of the Owner, which the Owner shall have full liberty to withhold. The Manager shall in due time furnish the Owner with all information and documentation which the Owner needs to review and asses in order to decide whether or not to grant such approval. The Owner's prior written approval will generally be based on a decision made by Owner's board. |
(ix) | It is acknowledged that the Manager may also operate and market rigs owned by other Group Companies than the Owner and capable of competing with the Vessel. The Manager shall be free to operate and market such rigs (capable of competing with the Vessel) without limitation or obligation to the Owner, provided that the Manager notifies the Owner immediately of any potential conflict, |
(x) | The Manager shall prepare all other documents related to the bid relating to the Vessel in conformity with the Manager's standard bidding practices to the extent permitted by law, and in accordance with any applicable competition and antitrust laws and regulations. |
4.3 | Insurance |
4.3.1 | General |
a) | Hull and machinery insurance (including Owner's owned subsea and drilling equipment) both against marine and war perils, to the full value of the Vessel or as otherwise specified by the Owner. |
b) | Protection and indemnity insurance for operating or lay-up / stacked mode as appropriate. |
c) | Liability insurance for Owner's personnel as appropriate under any applicable laws in respect of the Owner's personnel. |
d) | Other insurances as required and agreed in the Employment Contract or in financing agreements in force at any time. |
4.3.2 | Additional or alternative insurances |
4.3.3 | Employer's liability insurance |
4.3.4 | Insurance Claims |
5. | SCOPE OF WORK: TECHNICAL MANAGEMENT SERVICES |
5.1 | Personnel |
(i) | Provide adequate and properly qualified and experienced Crew for the Vessel as required by the Owners and provide for arrangement of transportation of the Crew, including repatriation, training of the Crew, supervision of the efficiency of the Crew and administration of all other Crew matters such as planning for the manning of the Vessel, payroll arrangement, arrangements and administration of pensions and Crew insurance, discipline and union negotiations, enforcement of appropriate standing orders. |
(ii) | Procure the manning of the shore base with sufficient and suitably qualified and experienced personnel In accordance with good oilfield practice and procure that such personnel shall devote the required amount of their normal working time to the Owner. |
(iii) | Ensure at all times that it has an adequate pool of qualified personnel in accordance with normal personnel management policies available to cover the leave requirements of personnel, their sickness, injury or removal from the Vessel if they are reasonably considered by the Owners and / or the Operator to be unsuitable for the post held by them. |
(iv) | Ensure that all personnel supplied by It in connection with this Agreement are covered by appropriate insurance. |
(v) | Procure the provision of catering services and transportation of Vessel personnel, safe working conditions complying with appropriate regulations as well as necessary welfare onboard the Vessel. |
(vi) | Provide for the remuneration of all personnel. |
5.2 | Technical assistance |
5.3 | Change of registry |
5.4 | Environment, safety and compliance with law |
5.5 | Quality Assurance |
5.6 | Reporting of events |
(i) | any medical treatment of crew, as well as lost time incidents; |
(ii) | the occurrence of any default by any of the parties under any Employment Contract or any other relevant contract in respect of the Vessel; |
(iv) | the occurrence of an event or condition which would permit any party under an Employment Contract or any other contract In respect of the Vessel to terminate such contract; or In the case of the Employment Contracts place the Vessel on a materially reduced zero day rate for a period exceeding 48 hours; |
(v) | any environmental event or accident, e.g. any release of hazardous materials by or in respect of the Vessel or caused by the Vessel or its operations; |
(vi) | total loss of the Vessel or damage thereof requiring repairs, the cost of which is likely to exceed USD 250,000 for one single damage or, if several damages, likely to exceed an aggregate value of USD 500,000 during a 12 month period; |
(vii) | any other claim exceeding USD 250,000, or if several claims, exceed an aggregate value of USD 500,000 during a 12 month period. |
6. | MANAGER'S USE OF OTHER GROUP COMPANIES AS SUBCONTRACTORS |
7. | MANAGEMENT FEE |
7.1 | The Management Fee |
7.2 | Cost base for Management Fee |
a. | the Manager's salary costs, pension costs and other costs attributable to the Manager's employees engaged in performing the Services, but excluding Crew costs forming part of the Vessel Operating Costs; |
b. | the Manager's expenses for materials and supplies consumed in rendering the Services; |
c. | the Manager's office expenses; |
d. | depreciations of the Manager's fixed assets; |
e. | the Manager's travel costs; and |
f. | all other of the Manager's direct and Indirect Operating costs attributable to the rendering of the Services, including other administrative costs related to the operation of the Manager's organization. |
a. | financial expenses, including interest costs; and |
b. | tax. |
a. | fees and other costs paid by the Manager with its own funds to third party sub-contractors engaged by the Manager in the rendering of the Services; |
b. | insurance premiums and deductibles under Insurances covered by sub-Clauses 4.3.1 and 4.3.2 above if exceptionally paid by the Manager with its own funds; and |
c. | Vessel Operating Costs if exceptionally paid by the Manager with its own funds. |
7.3 | Preliminary Fee: calculation and payment |
a. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the budgeted Operating Costs directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 % mark-up; and |
d. | the budgeted Pass-Through Costs. |
7.4 | Settlement of Management Fee |
a. | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the administrative services (see Clause 3), added a 5 % mark-up; |
b | the part of the actual Operating Costs incurred by the Manager in the relevant year directly and indirectly attributable to rendering the commercial management and insurance services (see Clause 4), added a 7 % mark-up; |
c. | the part of the actual Operating Costs Incurred by the Manager in the relevant year directly and indirectly attributable to rendering the technical management services (see Clause 5), added a 7 °A) mark-up; and |
d. | the actual Pass-Through Costs incurred by the Manager in the relevant year. |
7.5 | Adjustment of Management Fee to satisfy transfer pricing requirements |
8. | OWNER'S EQUIPMENT |
9. | EMPLOYMENT OF AGENTS AND SUBCONTRACTORS |
(i) | to employ, subject to Owner's prior written approval, on behalf of the Owner, any such agents or ship or insurance brokers as It may deem fit with liberty to appoint any associated company in any such capacity; |
(ii) | to engage subcontractors for the performance of specific assignments; |
(iii) | subject to sub-Clause 3.1.1, to establish and maintain such bank account or accounts as the Manager may deem necessary or expedient; and |
(iv) | to assist the Owner to the extent requested by the Owner in obtaining legal advice in relation to disputes or other legal matters affecting the interests of the Owner in respect of the Vessel related to the Construction Contract or potential other applicable contracts related to the Vessel. A copy of such advice shall be sent to the Owner as soon as possible after receipt thereof. |
10. | LOANS BETWEEN THE OWNER AND THE MANAGER |
11. | TAXES |
12. | CONSULTATION |
13. | DURATION AND TERMINATION |
13.1 | Duration |
13.2 | Termination |
13.3 | Effect of termination |
14. | AUDIT AND ATTENDANCE / SUPERVISION |
14.1 | Audit |
14.2 | Attendance / Supervision |
15. | ASSIGNMENT |
16. | EXCLUSION OF SET OFF |
17. | INDEMNITY |
18. | FORCE MAJEURE |
19. | SURVIVAL OF PROVISIONS |
20. | COUNTERPARTS |
21. | MODIFICATION OF AGREEMENT |
22. | CONFIDENTIALITY |
23. | GOVERNING LAW |
24. | ARBITRATION |
Ocean Rig Management
|
Drillship Alonissos Owners Inc.
|
|
/s/ Dr. Adriano Cefai
DIRECTOR
OMEGA SERVICES LTD.
5/1 MERCHANTS LTD
VALETTA 1171
|
/s/ Dr. Adriano Cefai
DIRECTOR
MARE SERVICES LTD.
5/1 MERCHANTS LTD
VALETTA 1171
|
|
By: Dr. Adriano Cefai
|
By: Dr. Adriano Cefai
|
|
Director of OMEGA SERVICES LIMITED -
|
Director of MARE SERVICES LIMITED -
|
|
Sole Director of Ocean Rig Management
|
Sole Director of Drillship Alonissos Owners Inc.
|
|
US$120,000,000
|
November 18, 2014
|
New York, New York
|
(i) | For the period from the Closing Date to and including the date that is one year after the Closing Date, a rate per annum equal to (a) the ABN AMRO Rate plus (b) 3.00%; |
(ii) | After the date that is one year after the Closing Date, the greater of: |
1) | the ABN AMRO Rate plus 3.00%, and |
2) | LIBOR plus 11.75%. |
(a) | The Borrower shall have duly executed and delivered this Note to the Noteholder; |
(b) | The Noteholder shall have received from the Borrower a copy of the officer's certificate attaching and/or certifying (i) the organizational documents of the Borrower, (ii) the resolutions or other authority documents of the Borrower required in connection with the Loan, (iii) as to the incumbency of the members of board of directors of the Borrower, the signatory of the Borrower executing this Note, and the signatory of the Borrower that will execute the Borrowing Notice; |
(c) | A good standing certificate in respect of the Borrower issued by the appropriate governmental authority in its jurisdiction of organization; |
(d) | The Noteholder shall have received a copy of a certificate from the chief executive officer or any other senior executive officer of the Borrower certifying that the execution, delivery and performance by the Borrower of this Note and compliance by the Borrower and its Subsidiaries with the terms and conditions herein and the consummation of the transactions contemplated hereby do not and will not (i) infringe or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the documents constituting the Borrower or any of its Subsidiaries; (ii) infringe or conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Borrower or any of its Subsidiaries pursuant to any loan agreement, facility agreement, indenture, trust deed, mortgage or other agreement or instrument to which the Borrower or any of its Subsidiaries is a party or by which it or any of its properties is bound; or (iii) infringe any existing applicable law, rule or regulation or any judgment, decree or order of any applicable government, governmental body or court having jurisdiction over the Borrower or any of its subsidiaries or any of their respective properties; |
(e) | The Noteholder shall have received legal opinions addressed to the Noteholder from New York and Marshall Islands counsel to the Borrower in form and substance acceptable to the Noteholder; |
(f) | The Noteholder shall have received a fairness opinion in form and substance acceptable to the Noteholder; |
(g) | The Noteholder shall have received evidence satisfactory to it that the Existing Debt will be repaid in full by December 1, 2014; |
(h) | The Noteholder shall have received a Borrowing Notice in accordance with Section 2.2; |
(i) | No Default or Event of Default shall have occurred and be continuing or would be caused by the funding of the Advance; |
(j) | The Noteholder shall have received evidence satisfactory to the Noteholder that the Borrowers has paid the fees required pursuant to Section 4 hereof; and |
(k) | There has been no Material Adverse Effect. |
(a) | Minimum Market Adjusted Equity Ratio of20%; |
(b) | Minimum Interest Cover Ratio of 2.05 to 1.00; and |
(c) | Minimum Market Adjusted Net Worth of$1,000,000,000. |
(a) | the value of Total Assets determined on a consolidated basis in accordance with GAAP and as shown in such consolidated balance sheets; and |
(b) | the Market Value Adjusted Total Assets; |
(a) | plus, to the extent deducted in computing consolidated Net Income of the Group for that accounting period, the sum, without duplication, of: |
(b) | minus, to the extent added in computing consolidated net income of the Group for that accounting period, any non-cash income or non-cash gains and any extraordinary, exceptional or infrequently occurring gains not incurred in the ordinary course of business; |
(a) | the amounts incurred by the Group during that financial year as expenses of its business; |
(b) | depreciation, amortization and all interest in respect of all Financial Indebtedness of the Group paid by all members of the Group during that financial year; |
(c) | Net Interest Expenses; |
(d) | taxes; and |
(e) | other items charged to the Borrower's consolidated profit and loss account for the relevant financial year; |
(a) | (i) Violate any Anti-Terrorism Laws or (ii) engage in any transaction, investment, undertaking or activity that conceals the identity, source or destination of the proceeds from any category of prohibited offenses designatedby the Organization for Economic Co-operation and Development's Financial Action Task Force on Money Laundering or (iii) permit any of its Affiliates to violate these laws or engage in these actions. |
(b) | (i) Become a Blocked Person or (ii) permit any of its Affiliates to become a Blocked Person. |
(c) | Conduct any business or engage in making or receiving any contribution of goods, services or money to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction related to, any property or interests in property blocked pursuant to any Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law or (iv) permit any of its Affiliates to do any of the foregoing. |
(a) | The Borrower commences any case, proceeding or other action (i) under anyexisting or future Law relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts or (ii) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower makes a general assignment for the benefit of its creditors; |
(b) | there is commenced against the Borrower any case, proceeding or other action of a nature referred to in Section 10.5(a) above which (i) results in the entry of an order for relief or any such adjudication or appointment or (ii) remains undismissed, undischarged or unbonded for a period of 90 days; |
(c) | there is commenced against the Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which has not been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; |
(d) | the Borrower takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in Section 10.5(a), Section 10.5(b) or Section 10.5(c) above; or |
(e) | the Borrower is generally not able to, or admits in writing its inability to, |
(a) | it has been advised by counsel in the negotiation, execution and delivery of this Note; |
(b) | neither the Noteholder nor the Affiliates thereof have any fiduciary relationship with or fiduciary duty to the Borrower arising out of or in connection with this Note, and the relationship between the Noteholder, on the one hand, and the Borrower, on the other hand, in connection herewith is solely that of debtor and creditor; |
(c) | no joint venture is created hereby or otherwise exists by virtue of any transactions contemplated hereby; and |
(d) | neither the Noteholder nor the Affiliates thereof, nor any receiver or manager appointed by the Noteholder, shall have any liability to the Borrower for any loss caused by an exercise of rights under this Note or by any failure or delay to exercise such a right. |
BORROWER
|
|||
DRY SHIPS INC.
|
|||
By
|
/s/ Ziad Nakhleh
|
||
Name:
|
Ziad Nakhleh
|
||
Title:
|
Chief Financial Officer
|
NOTEHOLDER
|
||
ALLEY FINANCE
|
||
By
|
/s/ Solon Drakoulis
|
|
Name:
|
Solon Drakoulis
|
|
Title:
|
Attorney-in-Fact
|
(a) | Funded on [DATE] (a Business Day) (the "Borrowing Date"). |
(b) | In the amount of $[AMOUNT]. |
Very truly yours,
|
||
DRYSHIPS INC.
|
||
By
|
||
Name:
|
||
Title:
|
Name of Subsidiary
|
Jurisdiction of
Incorporation
|
Drill Rigs Holdings Inc.
|
Marshall Islands
|
Ocean Rig 1 Shareholders Inc.
|
Marshall Islands
|
Ocean Rig 1 Inc.
|
Marshall Islands
|
Ocean Rig 1 Greenland Operations Inc.
|
Marshall Islands
|
Ocean Rig Falkland Operations Inc.
|
Marshall Islands
|
Ocean Rig West Africa Operations Inc.
|
Marshall Islands
|
Ocean Rig 2 Shareholders Inc
|
Marshall Islands
|
Ocean Rig 2 Inc.
|
Marshall Islands
|
Drill Rigs Operations Inc.
|
Marshall Islands
|
Ocean Rig EG Operations Inc.
|
Marshall Islands
|
Ocean Rig Norway Operations Inc
|
Marshall Islands
|
Ocean Rig Liberia Operations Inc.
|
Marshall Islands
|
Ocean Rig Ireland Operations Inc.
|
Marshall Islands
|
Drillships Holdings Inc.
|
Marshall Islands
|
Drillship Hydra Shareholders Inc.
|
Marshall Islands
|
Drillship Hydra Owners Inc.
|
Marshall Islands
|
Ocean Rig Corcovado Greenland Operations Inc.
|
Marshall Islands
|
Drillship Paros Shareholders Inc.
|
Marshall Islands
|
Drillship Paros Owners Inc.
|
Marshall Islands
|
Drillships Holdings Operations Inc.
|
Marshall Islands
|
Ocean Rig Angola Operations Inc.
|
Marshall Islands
|
Ocean Rig Gabon Operations Inc.
|
Marshall Islands
|
Drillships Investment Inc.
|
Marshall Islands
|
Kithira Shareholders Inc.
|
Marshall Islands
|
Drillship Kithira Owners Inc.
|
Marshall Islands
|
Ocean Rig Poseidon Operations Inc.
|
Marshall Islands
|
Skopelos Shareholders Inc.
|
Marshall Islands
|
Drillship Skopelos Owners Inc.
|
Marshall Islands
|
Drillships Investment Operations Inc.
|
Marshall Islands
|
Ocean Rig Namibia Operations Inc.
|
Marshall Islands
|
Ocean Rig Cuanza Operations Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Inc.
|
Marshall Islands
|
Drillship Skiathos Shareholders Inc.
|
Marshall Islands
|
Drillship Skiathos Owners Inc.
|
Marshall Islands
|
Drillship Skyros Shareholders Inc.
|
Marshall Islands
|
Drillship Skyros Owners Inc.
|
Marshall Islands
|
Drillship Kythnos Shareholders Inc.
|
Marshall Islands
|
Drillship Kythnos Owners Inc.
|
Marshall Islands
|
Drillships Ocean Ventures Operations Inc.
|
Marshall Islands
|
Ocean Rig Cunene Operations Inc.
|
Marshall Islands
|
Ocean Rig Cubango Operations Inc.
|
Marshall Islands
|
Ocean Rig Operations Inc.
|
Marshall Islands
|
Ireland Drilling Crew Inc.
|
Marshall Islands
|
Drillships Financing Holding Inc.
|
Marshall Islands
|
Alley Finance Co.
|
Marshall Islands
|
Algarve Finance Ltd
|
Marshall Islands
|
Ocean Rig Global Chartering Inc.
|
Marshall Islands
|
Drillship Alonissos Shareholders Inc.
|
Marshall Islands
|
Drillship Alonissos Owners Inc.
|
Marshall Islands
|
Ocean Rig Management Inc.
|
Marshall Islands
|
Eastern Med Consultants Inc.
|
Marshall Islands
|
Ocean Rig Spares Inc.
|
Marshall Islands
|
Bluesky Shareholders Inc.
|
Marshall Islands
|
Bluesky Owners Inc.
|
Marshall Islands
|
Ocean Rig Black Sea Cooperatief U.A.
|
Netherlands
|
Ocean Rig Black Sea Operations B.V.
|
Netherlands
|
Ocean Rig Drilling Operations Cooperatief U.A.
|
Netherlands
|
Ocean Rig Drilling Operations B.V.
|
Netherlands
|
Ocean Rig Block 33 Brasil Cooperatief U.A.
|
Netherlands
|
Ocean Rig Block 33 Brasil B.V.
|
Netherlands
|
Ocean Rig Ghana Limited
|
Ghana
|
Ocean Rig Olympia Operations Ghana Limited
|
Ghana
|
Primelead Limited
|
Cyprus
|
Ocean Rig UDW LLC
|
U.S.
|
[Drillships Projects Inc.
|
Delaware, U.S.
|
Ocean Rig Canada Inc.
|
Canada
|
Ocean Rig North Sea AS
|
Norway
|
Ocean Rig AS
|
Norway
|
Ocean Rig UK Limited
|
UK
|
Ocean Rig Limited
|
UK
|
Olympia Rig Angola Holding S.A.
|
Angola
|
Olympia Rig Angola Limitada
|
Angola
|
Ocean Rig Deepwater Drilling Limited
|
Nigeria
|
Ocean Rig do Brasil Servicos de Petroleo Ltda.
|
Brazil
|
Ocean Rig Drilling do Brasil Servicos de Petroleo Ltda.
|
Brazil
|
Ocean Rig Rio de Janeiro Servicos de Petroleo Ltda.
|
Brazil
|
Ocean Rig Offshore Management Limited
|
Jersey
|
OR Crewing Limited
|
Jersey
|
Ocean Rig Holdings Inc.
|
Marshall Islands
|
Ocean Rig MLP Holdings Inc.
|
Marshall Islands
|
Ocean Rig Partners GP LLC
|
Marshall Islands
|
Ocean Rig Partners LP
|
Marshall Islands
|
Ocean Rig Operating Partners GP LLC
|
Marshall Islands
|
Ocean Rig Operating LP
|
Marshall Islands
|
Drillships Ocean Ventures II Inc.
|
Marshall Islands
|
Drillship Skiathos Shareholders II Inc.
|
Marshall Islands
|
Drillship Skiathos Owners II Inc.
|
Marshall Islands
|
Drillship Skyros Shareholders II Inc.
|
Marshall Islands
|
Drillship Skyros Owners II Inc.
|
Marshall Islands
|
Drillship Kythnos Shareholders II Inc.
|
Marshall Islands
|
Drillship Kythnos Owners II Inc.
|
Marshall Islands
|
OCR Falklands Drilling Inc.
|
Marshall Islands
|
[Drillships Ventures Projects Inc.
|
Delaware, U.S.
|
South Africa Drilling Crew Inc.
|
Marshall Islands
|
Ocean Rig Congo Operations Inc.
|
Marshall Islands
|
OR Global Block Operators Inc.
|
Marshall Islands
|
Drillship Santorini Shareholders Inc.
|
Marshall Islands
|
Drillship Santorini Owners Inc.
|
Marshall Islands
|
Drillship Crete Shareholders Inc.
|
Marshall Islands
|
Drillship Crete Owners Inc.
|
Marshall Islands
|
Drillship Amorgos Shareholders Inc.
|
Marshall Islands
|
Drillship Amorgos Owners Inc.
|
Marshall Islands
|
Income Taxes (Tables)
|
12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Dec. 31, 2014
|
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Income Taxes [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Schedule of income before income tax, domestic and foreign |
|
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Income tax expense statutory tax rate |
|
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Schedule of reconciliation of total tax expense |
|
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Schedule of deferred tax assets and liabilities |
|
Other non-current assets (Table) (Details) (USD $)
In Thousands, unless otherwise specified |
Dec. 31, 2014
|
Dec. 31, 2013
|
---|---|---|
Other non-current assets [Abstract] | ||
Deferred mobilization expenses | $ 43,327 | $ 72,624 |
Intangible assets, net | 4,732 | 6,175 |
Other | 57,910 | 29,079 |
Total | $ 105,969 | $ 107,878 |
Transactions with Related Parties - Cardiff, Vivid, Basset, Azara, Dryships (Details)
In Thousands, except Share data, unless otherwise specified |
12 Months Ended | 24 Months Ended | 12 Months Ended | 28 Months Ended | 24 Months Ended | 8 Months Ended | 12 Months Ended | 8 Months Ended | 12 Months Ended | 8 Months Ended | 12 Months Ended | 11 Months Ended | 12 Months Ended | |||||||||||||||||||||
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Dec. 31, 2014
USD ($)
|
Dec. 31, 2013
USD ($)
|
Dec. 31, 2012
USD ($)
|
Dec. 31, 2012
Management Agreement between Dryships and Cardiff
|
Dec. 31, 2014
New Management Agreement between Company and Cardiff
|
Dec. 31, 2014
Vivid - Consultancy agreement
|
Dec. 31, 2012
Vivid - Consultancy agreement
|
Dec. 31, 2014
Vivid - New consultancy agreement
|
Aug. 19, 2014
Basset - Consultancy Agreement 2012
USD ($)
|
Aug. 20, 2013
Basset - Consultancy Agreement 2012
USD ($)
|
Dec. 30, 2014
Basset - Consultancy Agreement 2012
USD ($)
|
Dec. 31, 2014
Basset - Consultancy Agreement 2012
USD ($)
|
Dec. 31, 2014
Basset - Consultancy Agreement 2012
EUR (€)
|
Dec. 31, 2015
Basset- Consultancy Agreement 2015
USD ($)
|
Dec. 31, 2015
Basset- Consultancy Agreement 2015
EUR (€)
|
Dec. 31, 2014
Steel Wheel
|
Aug. 20, 2013
Azara Services S.A.
USD ($)
|
Dec. 31, 2014
Azara Services S.A.
USD ($)
|
Dec. 31, 2013
Azara Services S.A.
USD ($)
|
Dec. 31, 2012
Azara Services S.A.
USD ($)
|
Aug. 20, 2015
Azara Services S.A.
|
Aug. 20, 2014
Azara Services S.A.
|
Aug. 19, 2014
Azara Services S.A. on 19 August 2014
USD ($)
|
Dec. 31, 2016
Azara Services S.A. on 19 August 2014
|
Dec. 31, 2015
Azara Services S.A. on 19 August 2014
|
Dec. 31, 2014
Azara Services S.A. on 19 August 2014
|
Dec. 30, 2014
Azara Services S.A. on 30 December 2014
USD ($)
|
Dec. 31, 2017
Azara Services S.A. on 30 December 2014
|
Dec. 31, 2016
Azara Services S.A. on 30 December 2014
|
Dec. 31, 2015
Azara Services S.A. on 30 December 2014
|
Nov. 18, 2014
Dryships Inc.
USD ($)
|
Dec. 31, 2014
Dryships Inc.
USD ($)
|
Dec. 31, 2013
Dryships Inc.
USD ($)
|
Dec. 31, 2012
Dryships Inc.
USD ($)
|
|
Related Party Transaction [Line Items] | ||||||||||||||||||||||||||||||||||
Commissions in connection with employment arrangements | 1.00% | 1.00% | ||||||||||||||||||||||||||||||||
Commission on purchase and sale activities | 0.75% | 0.75% | ||||||||||||||||||||||||||||||||
Duration of consultancy agreement | 5 years | |||||||||||||||||||||||||||||||||
Commission on financing related services | 0.20% | 0.20% | ||||||||||||||||||||||||||||||||
Annual renumeration | $ 1,100 | € 900 | $ 550 | € 450 | $ 9,000 | $ 5,000 | $ 0 | |||||||||||||||||||||||||||
Cash Bonus | 4,000 | 3,000 | 3,000 | 2,500 | 2,500 | 4,000 | ||||||||||||||||||||||||||||
Ownership in Ocean Rig | 114,286 | 114,286 | 1,570,226 | |||||||||||||||||||||||||||||||
Professional Financial Fees | 2,500 | |||||||||||||||||||||||||||||||||
Shares granted | 656,650 | 342,400 | 150,000 | 150,000 | 300,000 | |||||||||||||||||||||||||||||
Vesting period | 2 years | 3 years | 3 years | |||||||||||||||||||||||||||||||
Grant date fair value | $ 17.56 | $ 18.37 | $ 9.46 | |||||||||||||||||||||||||||||||
Shares vested on grant date | 50,000 | |||||||||||||||||||||||||||||||||
Shares vested in period | 50,000 | 50,000 | 50,000 | 50,000 | 50,000 | 100,000 | 100,000 | 100,000 | ||||||||||||||||||||||||||
Unsecured debt to parent company | 117,219 | 0 | 120,000 | 117,219 | 0 | |||||||||||||||||||||||||||||
Debt Instrument - variable interest rate basis | LIBOR | |||||||||||||||||||||||||||||||||
Payment terms | The bank loans are payable in U.S. Dollars in quarterly with balloon payments due at maturity between July 2020 and July 2021. | The Company has the option to exhange this loan for its common shares owned by DryShips at a fixed price per share, provided the DryShips $200,000 million Secured Bridge Credit facility has been repaid in full. If such exchange occurs, the margin of the loan will be reduced from inception. | ||||||||||||||||||||||||||||||||
Maturity date of loan | May-16 | |||||||||||||||||||||||||||||||||
Interest Received | 1,164 | 1,164 | 0 | 0 | ||||||||||||||||||||||||||||||
Dividends paid | $ 75,194 | $ 0 | $ 0 | $ 44,631 |
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