[_]
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
OR
|
|
[X]
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the fiscal year ended December 31, 2016
|
|
[_]
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the transition period from to
|
|
[_]
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
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
|
Large accelerated filer
☐
|
Accelerated filer
☐
|
Non-accelerated filer
☒
|
US GAAP
☒
|
International Financial Reporting Standards as issued by the International Accounting Standards Board
☐
|
Other
☐
|
● |
our future operating or financial results;
|
● |
statements about planned, pending or recent acquisitions, business strategy and expected capital spending or operating expenses, including drydocking, surveys, upgrades and insurance costs;
|
● |
our ability to procure or have access to financing, our liquidity and the adequacy of cash flow for our operations;
|
● |
our 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;
|
● |
our ability to successfully employ our existing and newbuild drybulk, tanker, liquefied petroleum gas and offshore support vessels, as applicable;
|
● |
our offshore support contract backlog, contract commencements, offshore support contract terminations, offshore support contract option exercises, offshore support contract revenues, offshore support contract awards and platform and offshore support vessels mobilizations and performance provisions,
|
● |
our future capital expenditures and investments in the construction, acquisition and refurbishment of our vessels (including the amount and nature thereof and the timing of completion thereof, the delivery and commencement of operations dates, expected downtime and lost revenue);
|
● |
statements about drybulk, tanker, and liquefied petroleum gas shipping and offshore support market trends, charter rates and factors affecting supply and demand;
|
● |
our expectations regarding the availability of vessel acquisitions; and
|
● |
anticipated developments with respect to pending litigation.
|
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
|
44
|
Item 4A.
|
Unresolved Staff Comments
|
69
|
Item 5.
|
Operating and Financial Review and Prospects
|
69
|
Item 6.
|
Directors and Senior Management
|
121
|
Item 7.
|
Major Shareholders and Related Party Transactions
|
127
|
Item 8.
|
Financial Information
|
136
|
Item 9.
|
The Offer and Listing
|
138
|
Item 10.
|
Additional Information
|
139
|
Item 11.
|
Quantitative and Qualitative Disclosures about Market Risk
|
155
|
Item 12.
|
Description of Securities Other than Equity Securities
|
156
|
PART II
|
157
|
|
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies
|
157
|
Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
159
|
Item 15.
|
Controls and Procedures
|
159
|
Item 16A.
|
Audit Committee Financial Expert
|
159
|
Item 16B.
|
Code of Ethics
|
139
|
Item 16C.
|
Principal Accountant Fees and Services
|
160
|
Item 16D.
|
Exemptions from the Listing Standards for Audit Committees
|
160
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
160
|
Item 16F.
|
Changes in Registrant's Certifying Accountant
|
160
|
Item 16G.
|
Corporate Governance
|
160
|
Item 16H.
|
Mine Safety Disclosure
|
161
|
PART III.
|
161
|
|
Item 17.
|
Financial Statements
|
161
|
Item 18.
|
Financial Statements
|
161
|
Item 19.
|
Exhibits
|
161
|
Item 1. |
Identity of Directors, Senior Management and Advisers
|
Item 2. |
Offer Statistics and Expected Timetable
|
Item 3. |
Key Information
|
A. |
Selected Financial Data
|
Year Ended December 31,
|
||||||||||||||||||||
(In thousands of U.S. dollars except per share and share data)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
STATEMENT OF OPERATIONS
|
||||||||||||||||||||
Total revenues
|
$
|
1,210,139
|
$
|
1,492,014
|
$
|
2,185,524
|
$
|
969,825
|
$
|
51,934
|
||||||||||
Voyage expenses
|
30,012
|
103,211
|
117,165
|
65,286
|
9,209
|
|||||||||||||||
Vessels and drilling units operating expenses
|
649,722
|
609,765
|
844,260
|
371,074
|
45,563
|
|||||||||||||||
Depreciation and amortization
|
335,458
|
357,372
|
449,792
|
227,652
|
3,466
|
|||||||||||||||
Loss on contract cancellation
|
—
|
—
|
1,307
|
28,241
|
—
|
|||||||||||||||
Contract termination fees and other
|
41,339
|
33,293
|
—
|
—
|
—
|
|||||||||||||||
Impairment loss, gain/loss from sale of vessels and vessel owning companies and other
|
1,179
|
43,490
|
38,148
|
1,057,116
|
106,343
|
|||||||||||||||
Impairment on goodwill
|
—
|
—
|
—
|
—
|
7,002
|
|||||||||||||||
General and administrative expenses – cash(1)
|
132,636
|
173,298
|
182,593
|
97,106
|
36,128
|
|||||||||||||||
General and administrative expenses – non-cash
|
13,299
|
11,424
|
11,093
|
7,806
|
3,580
|
|||||||||||||||
Legal settlements and other, net
|
(9,360
|
)
|
4,585
|
(2,013
|
)
|
(2,948
|
)
|
(258
|
)
|
|||||||||||
Operating income/(loss)
|
15,854
|
155,576
|
543,179
|
(881,508
|
)
|
(159,099
|
)
|
|||||||||||||
Interest and finance costs
|
(210,128
|
)
|
(332,129
|
)
|
(411,021
|
)
|
(172,132
|
)
|
(8,857
|
)
|
||||||||||
Interest income
|
4,203
|
12,498
|
12,146
|
527
|
81
|
|||||||||||||||
Gain on debt restructuring
|
—
|
—
|
—
|
—
|
10,477
|
|||||||||||||||
Gain/(loss) on interest rate swaps
|
(54,073
|
)
|
8,373
|
(15,528
|
)
|
(11,601
|
)
|
403
|
||||||||||||
Other, net
|
(492
|
)
|
2,245
|
7,067
|
(9,275
|
)
|
(199
|
)
|
||||||||||||
Income/(loss) before income taxes and earnings of affiliated companies
|
(244,636
|
)
|
(153,437
|
)
|
135,843
|
(1,073,98
|
)
|
(157,194
|
)
|
|||||||||||
Loss due to deconsolidation of Ocean Rig
|
—
|
—
|
—
|
(1,347,106
|
)
|
—
|
||||||||||||||
Income taxes
|
(43,957
|
)
|
(44,591
|
)
|
(77,823
|
)
|
(37,119
|
)
|
(38
|
)
|
||||||||||
Equity in net losses of affiliated company
|
—
|
—
|
—
|
(349,872
|
)
|
(41,454
|
)
|
|||||||||||||
Net Income/(loss)
|
(288,593
|
)
|
(198,028
|
)
|
58,020
|
(2,808,086
|
)
|
(198,686
|
)
|
|||||||||||
Less: Net (income)/loss attribute to non-controlling interests
|
41,815
|
(25,065
|
)
|
(105,532
|
)
|
(38,975
|
)
|
—
|
||||||||||||
Net loss attributable to DryShips Inc.
|
$
|
(246,778
|
)
|
$
|
(223,093
|
)
|
$
|
(47,512
|
)
|
$
|
(2,847,061
|
)
|
$
|
(198,686
|
)
|
|||||
Net loss attributable to common stockholders
|
$
|
(246,778
|
)
|
$
|
(223,149
|
)
|
$
|
(48,209
|
)
|
$
|
(2,847,631
|
)
|
$
|
(206,381
|
)
|
|||||
Loss per common share attributable to DryShips Inc. common stockholders, basic
|
$
|
(7,789.71
|
)
|
$
|
(6,972.32
|
)
|
$
|
(1,268.56
|
)
|
$
|
(51,389.22
|
)
|
$
|
(464.76
|
)
|
|||||
Weighted average number of common shares, basic
|
31,680
|
32,005
|
38,003
|
55,413
|
444,056
|
|||||||||||||||
Loss per common share attributable to DryShips Inc. common stockholders, diluted
|
$
|
(7,789.71
|
)
|
$
|
(6,972.32
|
)
|
$
|
(1,268.56
|
)
|
$
|
(51,389.22
|
)
|
$
|
(464.76
|
)
|
|||||
Weighted average number of common shares, diluted (2)
|
31,680
|
32,005
|
38,003
|
55,413
|
444,056
|
(1) |
Cash compensation to members of our senior management and our directors amounted to $5.7 million, $4.8 million, $5.8 million, $8.4, and $4.0 million for the years ended December 31, 2012, 2013, 2014, 2015 and 2016, respectively.
|
(2) |
All previously reported share and per share amounts have been adjusted to account for all reverse stock splits, including the 1-for-25 reverse stock split on March 11, 2016, the 1-for-4 reverse stock split on August 15, 2016, the 1-for-15 reverse stock split on November 1, 2016 and the 1-for-8 reverse stock split on January 23, 2017.
|
As of and for the
Year Ended December 31
,
|
||||||||||||||||||||
(In thousands of U.S. dollars except share data and fleet data)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
BALANCE SHEET DATA
|
||||||||||||||||||||
Total current assets
|
$
|
903,529
|
$
|
1,184,199
|
$
|
1,215,044
|
$
|
269,067
|
$
|
98,170
|
||||||||||
Total assets
|
8,878,491
|
10,123,692
|
10,359,370
|
476,052
|
193,730
|
|||||||||||||||
Current liabilities, including current portion of long-term debt, net of deferred finance cost
|
1,573,529
|
2,171,714
|
1,609,527
|
354,640
|
27,339
|
|||||||||||||||
Total long-term debt, including current portion
|
4,386,715
|
5,568,003
|
5,517,613
|
340,622
|
133,428
|
|||||||||||||||
DryShips common stock
|
0
|
0
|
1
|
1
|
46
|
|||||||||||||||
Number of shares issued
|
35,397
|
36,055
|
58,839
|
59,014
|
4,617,142
|
|||||||||||||||
Total DryShips Inc. stockholders' equity
|
2,846,460
|
2,613,636
|
2,992,821
|
121,412
|
49,774
|
OTHER FINANCIAL DATA
|
||||||||||||||||||||
Net cash provided by/(used in) operating activities
|
$
|
237,529
|
$
|
245,980
|
$
|
475,108
|
$
|
215,747
|
$
|
(25,356
|
)
|
|||||||||
Net cash provided by/(used in) investing activities
|
(389,947
|
)
|
(1,234,330
|
)
|
(754,717
|
)
|
(465,698
|
)
|
69,718
|
|||||||||||
Net cash provided by/(used in) financing activities
|
243,225
|
1,241,542
|
250,709
|
(316,291
|
)
|
32,052
|
||||||||||||||
EBITDA (1)
|
$
|
296,747
|
$
|
523,566
|
$
|
984,510
|
$
|
(2,371,710
|
)
|
(186,406
|
)
|
|||||||||
DRYBULK FLEET DATA:
|
||||||||||||||||||||
Average number of vessels (2)
|
35.67
|
37.15
|
38.69
|
35.78
|
19.44
|
|||||||||||||||
Total voyage days for drybulk carrier fleet (3)
|
13,027
|
13,442
|
13,889
|
12,562
|
6,404
|
|||||||||||||||
Total calendar days for drybulk carrier fleet (4)
|
13,056
|
13,560
|
14,122
|
13,060
|
7,116
|
|||||||||||||||
Drybulk carrier fleet utilization (5)
|
99.78
|
%
|
99.13
|
%
|
98.35
|
%
|
96.19
|
%
|
89.99
|
%
|
||||||||||
(In Dollars)
|
||||||||||||||||||||
AVERAGE DAILY RESULTS:
|
||||||||||||||||||||
Time charter equivalent (6)
|
$
|
15,896
|
$
|
12,062
|
$
|
12,354
|
$
|
9,171
|
$
|
3,658
|
||||||||||
Vessel operating expenses (7)
|
5,334
|
5,796
|
6,400
|
6,715
|
4,826
|
|||||||||||||||
TANKER FLEET DATA:
|
||||||||||||||||||||
Average number of vessels (2)
|
6.27
|
9.86
|
10.00
|
6.21
|
—
|
|||||||||||||||
Total voyage days for tanker fleet (3)
|
2,293
|
3,598
|
3,650
|
2,168
|
—
|
|||||||||||||||
Total calendar days for tanker fleet (4)
|
2,293
|
3,598
|
3,650
|
2,267
|
—
|
|||||||||||||||
Tanker fleet utilization
|
100
|
%
|
100
|
%
|
100
|
%
|
95.63
|
%
|
—
|
|||||||||||
(In Dollars)
|
||||||||||||||||||||
AVERAGE DAILY RESULTS:
|
||||||||||||||||||||
Time Charter Equivalent (6)
|
$
|
13,584
|
$
|
12,900
|
$
|
21,835
|
$
|
36,389
|
—
|
|||||||||||
Vessel Operating Expenses (7)
|
7,195
|
7,286
|
7,138
|
8,721
|
—
|
|||||||||||||||
OFFSHORE SUPPORT FLEET DATA:
|
||||||||||||||||||||
Average number of vessels (2)
|
—
|
—
|
—
|
6.00
|
6.00
|
|||||||||||||||
Total voyage days for offshore support fleet (3)
|
—
|
—
|
—
|
426
|
1,615
|
|||||||||||||||
Total calendar days for offshore support fleet (4)
|
—
|
—
|
—
|
426
|
2,196
|
|||||||||||||||
Offshore support fleet utilization
|
—
|
—
|
—
|
100.0
|
%
|
73.54
|
%
|
|||||||||||||
(In Dollars)
|
||||||||||||||||||||
AVERAGE DAILY RESULTS:
|
||||||||||||||||||||
Time Charter Equivalent (6)
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
18,460
|
$
|
11,949
|
||||||||||
Vessel Operating Expenses (7)
|
—
|
—
|
—
|
9,336
|
9,032
|
(1) |
EBITDA, a non-U.S. GAAP measure, represents net income/(loss) before interest, taxes, depreciation and amortization. EBITDA does not represent and should not be considered as an alternative to net income/(loss) or cash flow from operations, as determined by U.S. GAAP and our calculation of EBITDA may not be comparable to that reported by other companies. EBITDA is included herein because it is a basis upon which we measure our operations. The following is a reconciliation of EBITDA to net loss attributable to the Company, the most directly comparable financial measure calculated in accordance with U.S. GAAP:
|
For the Year Ended December 31,
|
||||||||||||||||||||
(U.S. dollars in thousands)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
Net loss attributable to DryShips Inc.
|
$
|
(246,778
|
)
|
$
|
(223,093
|
)
|
$
|
(47,512
|
)
|
$
|
(2,847,061
|
)
|
$
|
(198,686
|
)
|
|||||
Add: Net interest expense
|
205,925
|
319,631
|
398,875
|
171,605
|
8,776
|
|||||||||||||||
Add: Depreciation and amortization
|
335,458
|
357,372
|
449,792
|
227,652
|
3,466
|
|||||||||||||||
Add: Income taxes
|
43,957
|
44,591
|
77,823
|
37,119
|
38
|
|||||||||||||||
Add: Net income/(loss) attributable to Non-controlling interests
|
(41,815
|
)
|
25,065
|
105,532
|
38,975
|
—
|
||||||||||||||
EBITDA
|
$
|
296,747
|
$
|
523,566
|
$
|
984,510
|
$
|
(2,371,710
|
)
|
$
|
(186,406
|
)
|
(2) |
Average number of vessels is the number of vessels that constituted the respective fleet for the relevant period, as measured by the sum of the number of days each vessel in that fleet was a part of the fleet during the period, divided by the number of calendar days in that period.
|
(3) |
Total voyage days for the respective fleet are the total days the vessels in that fleet were in our possession for the relevant period net of off-hire days associated with drydockings or special or intermediate surveys and laid up days.
|
(4) |
Calendar days are the total days the vessels in that fleet were in our possession for the relevant period including off-hire days associated with major repairs, drydockings or special or intermediate surveys and laid up days.
|
(5) |
Fleet utilization is the percentage of time that the vessels in that fleet were available for revenue-generating voyage days, and is determined by dividing voyage days by fleet calendar days for the relevant period.
|
(6) |
Time charter equivalent, or TCE, is a measure of the average daily revenue performance of a vessel on a per voyage basis. Our method of calculating TCE is determined by dividing voyage revenues (net of voyage expenses) by voyage days for the relevant time period. Voyage expenses primarily consist of port, canal and fuel costs that are unique to a particular voyage, which would otherwise be paid by the charterer under a time charter contract, as well as commissions. TCE revenues, a non-U.S. GAAP measure, provides additional meaningful information in conjunction with revenues from our vessels, the most directly comparable U.S. GAAP measure, because it assists our management in making decisions regarding the deployment and use of our vessels and in evaluating their financial performance. TCE is also a standard shipping industry performance measure used primarily to compare period-to-period changes in a shipping company's performance despite changes in the mix of charter types (i.e., spot charters, time charters and bareboat charters) under which the vessels may be employed between the periods. The following tables reflect the calculation of our TCE rates for the periods presented:
|
Drybulk Carrier Segment
|
Year Ended December 31,
|
|||||||||||||||||||
(In thousands of U.S. dollars, except for TCE rates,
|
||||||||||||||||||||
which are expressed in U.S. dollars, and voyage days)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
Voyage revenues (8)
|
$
|
227,141
|
$
|
191,024
|
$
|
205,630
|
$
|
138,828
|
$
|
30,777
|
||||||||||
Voyage expenses
|
(20,064
|
)
|
(28,886
|
)
|
(34,044
|
)
|
(23,619
|
)
|
(7,349
|
)
|
||||||||||
Time charter equivalent revenues
|
$
|
207,077
|
$
|
162,138
|
$
|
171,586
|
$
|
115,209
|
$
|
23,428
|
||||||||||
Total voyage days for drybulk fleet
|
13,027
|
13,442
|
13,889
|
12,562
|
6,404
|
|||||||||||||||
Time charter equivalent (TCE) rate
|
$
|
15,896
|
$
|
12,062
|
$
|
12,354
|
$
|
9,171
|
$
|
3,658
|
Tanker Segment
|
Year Ended December 31,
|
|||||||||||||||||||
(In thousands of U.S. dollars, except for TCE rates, which are
|
||||||||||||||||||||
expressed in U.S. dollars and voyage days)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
Voyage revenues
|
$
|
41,095
|
$
|
120,740
|
$
|
162,817
|
$
|
120,304
|
—
|
|||||||||||
Voyage expenses
|
(9,948
|
)
|
(74,325
|
)
|
(83,121
|
)
|
(41,413
|
)
|
—
|
|||||||||||
Time charter equivalent revenues
|
$
|
31,147
|
$
|
46,415
|
$
|
79,696
|
$
|
78,891
|
—
|
|||||||||||
Total voyage days for tanker fleet
|
2,293
|
3,598
|
3,650
|
2,168
|
—
|
|||||||||||||||
Time charter equivalent (TCE) rate
|
$
|
13,584
|
$
|
12,900
|
$
|
21,835
|
$
|
36,389
|
—
|
Offshore support Segment
|
Year Ended December 31,
|
|||||||||||||||||||
(In thousands of U.S. dollars, except for TCE rates, which are
|
||||||||||||||||||||
expressed in U.S. dollars and voyage days)
|
2012
|
2013
|
2014
|
2015
|
2016
|
|||||||||||||||
Voyage revenues
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
8,118
|
$
|
21,157
|
||||||||||
Voyage expenses
|
-
|
-
|
-
|
(254
|
)
|
(1,860
|
)
|
|||||||||||||
Time charter equivalent revenues
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
7,864
|
$
|
19,297
|
||||||||||
Total voyage days for offshore support fleet
|
-
|
-
|
-
|
426
|
1,615
|
|||||||||||||||
Time charter equivalent (TCE) rate
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
18,460
|
$
|
11,949
|
(7) |
Daily vessel operating expenses, which includes crew costs, provisions, deck and engine stores, lubricating oil, insurance, maintenance and repairs, is calculated by dividing vessel operating expenses by fleet calendar days net of laid up days for the relevant time period.
|
(8) |
Does not include accrual for the provision of the purchase options and write off in overdue receivables under certain time charter agreements.
|
B. |
Capitalization and Indebtedness
|
C. |
Reasons for the Offer and Use of Proceeds
|
D. |
Risk Factors
|
● |
supply and demand for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
● |
changes in the exploration or production of energy resources, commodities, semi-finished and finished consumer and industrial products;
|
● |
the location of regional and global exploration, production and manufacturing facilities;
|
● |
the location of consuming regions for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
● |
the globalization of production and manufacturing;
|
● |
global and regional economic and political conditions, including armed conflicts, terrorist activities, embargoes and strikes;
|
● |
natural disasters and other disruptions in international trade;
|
● |
developments in international trade;
|
● |
changes in seaborne and other transportation patterns, including the distance cargo is transported by sea;
|
● |
environmental and other regulatory developments;
|
● |
currency exchange rates; and
|
● |
weather.
|
● |
the number of newbuilding deliveries;
|
● |
port and canal congestion;
|
● |
the scrapping rate of older vessels;
|
● |
vessel casualties; and
|
● |
the number of vessels that are out of service.
|
· |
prevailing oil and natural gas prices;
|
· |
expectations about future prices and price volatility;
|
· |
cost of exploring for, producing and delivering oil and natural gas;
|
· |
sale and expiration dates of available offshore leases;
|
· |
demand for petroleum products;
|
· |
current availability of oil and natural gas resources;
|
· |
rate of discovery of new oil and natural gas reserves in offshore areas;
|
· |
local and international political, environmental and economic conditions;
|
· |
technological advances; and
|
· |
ability of oil and natural gas companies to obtain leases, permits or obtain funds for capital.
|
· |
constructing new vessels;
|
· |
moving vessels from one offshore market area to another;
|
· |
converting vessels formerly dedicated to services other than offshore marine services; or
|
· |
vessel charters expiring and not being rechartered or vessels charters being terminated.
|
· |
supply of and demand for oil and oil products;
|
· |
global and regional economic and political conditions, including developments in international trade, national oil reserves policies, fluctuations in industrial and agricultural production and armed conflicts, which, among other things, could impact the supply of oil as well as trading patterns and the demand for various types of vessels;
|
· |
regional availability of refining capacity;
|
· |
environmental and other legal and regulatory developments;
|
· |
the distance oil and oil products are to be moved by sea;
|
· |
changes in seaborne and other transportation patterns, including changes in the distances over which tanker cargoes are transported by sea;
|
· |
increases in the production of oil in areas linked by pipelines to consuming areas, the extension of existing, or the development of new, pipeline systems in markets we may serve, or the conversion of existing non-oil pipelines to oil pipelines in those markets;
|
· |
currency exchange rates;
|
· |
weather and acts of God and natural disasters;
|
· |
competition from alternative sources of energy and from other shipping companies and other modes of transport;
|
· |
international sanctions, embargoes, import and export restrictions, nationalizations, piracy and wars; and
|
· |
regulatory changes including regulations adopted by supranational authorities and/or industry bodies, such as safety and environmental regulations and requirements by major oil companies.
|
· |
current and expected purchase orders for tankers;
|
· |
the number of tanker newbuilding deliveries;
|
· |
any potential delays in the delivery of newbuilding vessels and/or cancellations of newbuilding orders;
|
· |
the scrapping rate of older tankers;
|
· |
technological advances in tanker design and capacity;
|
· |
tanker freight rates, which are affected by factors that may affect the rate of newbuilding, swapping and laying up of tankers;
|
· |
port and canal congestion;
|
· |
price of steel and vessel equipment;
|
· |
conversion of tankers to other uses or conversion of other vessels to tankers;
|
· |
the number of tankers that are out of service; and
|
· |
changes in environmental and other regulations that may limit the useful lives of tankers.
|
· |
global or regional economic or political conditions, particularly in LPG consuming regions;
|
· |
changes in global or general industrial activity specifically in the plastics and chemical industries;
|
· |
changes in the cost of petroleum and natural gas from which LPG is derived;
|
· |
changes in the consumption of LPG or natural gas due to availability of new, alternative energy sources or changes in the price of LPG or natural gas relative to other energy sources or other factors making consumption of LPG or natural gas less attractive;
|
· |
supply of and demand for LPG products;
|
· |
the development and location of production facilities for LPG products;
|
· |
regional imbalances in production and demand of LPG products;
|
· |
the distance LPG and LPG products are to be moved by sea;
|
· |
worldwide production of natural gas;
|
· |
availability of competing LPG vessels;
|
· |
availability of alternative transportation means, including pipelines for LPG, which are currently few in number, linking production areas and industrial and residential areas consuming LPG, or the conversion of existing non-petroleum gas pipelines to petroleum gas pipelines in those markets;
|
· |
changes in seaborne and other transportation patterns;
|
· |
development and exploitation of alternative fuels and non-conventional hydrocarbon production;
|
· |
governmental regulations, including environmental or restrictions on offshore transportation of natural gas;
|
· |
local and international political, economic and weather conditions;
|
· |
domestic and foreign tax policies; and
|
· |
accidents, severe weather, natural disasters and other similar incidents relating to the natural gas industry.
|
· |
the number of newbuilding deliveries (including the equivalent of 13.2% of the capacity of the existing fleet expected to be delivered by the end of 2018);
|
· |
the scrapping rate of older vessels;
|
· |
LPG vessel prices, including financing costs and the price of steel, other raw materials and vessel equipment;
|
· |
the availability of shipyards to build LPG vessels when demand is high;
|
· |
changes in environmental and other regulations that may limit the useful lives of vessels;
|
· |
technological advances in LPG vessel design and capacity; and
|
· |
the number of vessels that are out of service.
|
● |
prevailing level of charter rates;
|
● |
general economic and market conditions affecting the shipping industry;
|
● |
types and sizes of vessels;
|
● |
supply of and demand for vessels;
|
● |
other modes of transportation;
|
● |
cost of newbuildings;
|
● |
governmental and other regulations; and
|
● |
technological advances.
|
● |
marine disaster;
|
● |
environmental accidents;
|
● |
cargo and property losses or damage;
|
● |
business interruptions caused by mechanical failure, human error, war, terrorism, political action in various countries, labor strikes or adverse weather conditions; and
|
● |
piracy.
|
● |
enter into other financing arrangements;
|
● |
incur or guarantee additional indebtedness;
|
● |
create or permit liens on our assets;
|
● |
consummate a merger, consolidation or sale of our all or substantially all of our assets or the shares of our subsidiaries;
|
● |
make investments;
|
● |
change the general nature of our business;
|
● |
pay dividends, redeem capital stock or subordinated indebtedness or make other restricted payments;
|
● |
incur dividend or other payment restrictions;
|
● |
change the management and/or ownership of our vessels;
|
● |
enter into transactions with affiliates;
|
● |
transfer or sell assets;
|
● |
amend, modify or change our organizational documents;
|
● |
make capital expenditures;
|
● |
change the flag, class or management of our vessels;
|
● |
drop below certain minimum cash deposits, as defined in our credit facilities; and
|
● |
compete effectively to the extent our competitors are subject to less onerous restrictions.
|
● |
we may not be able to satisfy our financial obligations under our indebtedness and our contractual and commercial commitments, which may result in possible defaults on and acceleration of such indebtedness;
|
● |
we may not be able to obtain financing in the future for working capital, capital expenditures, acquisitions, debt service requirements or other purposes;
|
● |
we may not be able to use operating cash flow in other areas of our business because we must dedicate a substantial portion of these funds to service the debt;
|
● |
we could become more vulnerable to general adverse economic and industry conditions, including increases in interest rates, particularly given our substantial indebtedness, some of which bears interest at variable rates;
|
● |
our ability to refinance indebtedness may be limited or the associated costs may increase;
|
● |
less leveraged competitors could have a competitive advantage because they have lower debt service requirements and, as a result, we may not be better positioned to withstand economic downturns; and
|
● |
we may be less able to take advantage of significant business opportunities and to react to changes in market or industry conditions than our competitors and our management's discretion in operating our business may be limited.
|
· |
severe weather or natural disasters;
|
· |
moratoria on drilling or permitting delays;
|
· |
delays in or the inability to obtain regulatory approvals;
|
· |
delays or decreases in oil production;
|
· |
delays or decreases in the availability of drilling rigs and related equipment, facilities, personnel or services;
|
· |
delays or decreases in the availability of capacity to transport, gather or process production; and/or
|
· |
changes in the regulatory, political and fiscal environment.
|
● |
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.
|
● |
actual or anticipated fluctuations in our quarterly and annual results and those of other public companies in our industry;
|
● |
mergers and strategic alliances in the drybulk shipping industry;
|
● |
market conditions in the drybulk shipping industry and the general state of the securities markets;
|
● |
changes in government regulation;
|
● |
shortfalls in our operating results from levels forecast by securities analysts; and
|
● |
announcements concerning us or our competitors.
|
● |
authorizing our board of directors to issue "blank check" preferred stock without stockholder approval;
|
● |
providing for a classified board of directors with staggered, three-year terms;
|
● |
prohibiting cumulative voting in the election of directors;
|
● |
authorizing the removal of directors only for cause and only upon the affirmative vote of the holders of a majority of the outstanding shares of our common shares entitled to vote for the directors;
|
● |
prohibiting stockholder action by written consent unless the written consent is signed by all shareholders entitled to vote on the action;
|
● |
limiting the persons who may call special meetings of stockholders;
|
● |
establishing advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted on by stockholders at stockholder meetings; and
|
● |
restricting business combinations with interested shareholders.
|
Item 4. |
Information on the Company
|
A. |
History and Development of the Company
|
B. |
Business Overview
|
Redelivery
|
|||||||||||||||
Year Built
|
DWT
|
Type
|
Current employment
or employment
upon delivery
|
Gross rate
per day
|
Earliest
|
Latest
|
|||||||||
Panamax:
|
|||||||||||||||
Raraka
|
2012
|
76,037
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Rapallo
|
2009
|
75,123
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Catalina
|
2005
|
74,432
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Majorca
|
2005
|
74,477
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Ligari
|
2004
|
75,583
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Mendocino
|
2002
|
76,623
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Bargara
|
2002
|
74,832
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Ecola
|
2001
|
73,931
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Capitola
|
2001
|
74,816
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Levanto
|
2001
|
73,925
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Maganari
|
2001
|
75,941
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Marbella
|
2000
|
72,561
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Redondo
|
2000
|
74,716
|
Panamax
|
Spot
|
Spot
|
N/A
|
N/A
|
||||||||
Average age based on year built / Sum of DWT/ Total number of vessels
|
13.5 years
|
972,997
|
13
|
Redelivery
|
|||||||||||||||
Year Built
|
DWT
|
Type
|
Current employment
or employment
upon delivery
|
Gross rate
per day
|
Earliest
|
Latest
|
|||||||||
Platform Supply Vessels:
|
|||||||||||||||
Crescendo
|
2012
|
1,457
|
PSV
|
Laid up
|
N/A
|
N/A
|
N/A
|
||||||||
Colorado
|
2012
|
1,430
|
PSV
|
Laid up
|
N/A
|
N/A
|
N/A
|
||||||||
Average age based on year built/ Sum of DWT/ Total number of vessels
|
4.3 years
|
2,887
|
2
|
||||||||||||
Oil Spill Recovery Vessels
|
|||||||||||||||
Indigo
|
2013
|
1,393
|
OSRV
|
Laid up
|
N/A
|
N/A
|
N/A
|
||||||||
Vega Jaanca
|
2012
|
1,393
|
OSRV
|
T/C
|
T/C
|
Jul-17
|
Jul-21
|
||||||||
Vega Emtoli
|
2012
|
1,363
|
OSRV
|
T/C
|
T/C
|
May-17
|
May-21
|
||||||||
Jubilee
|
2012
|
1,317
|
OSRV
|
Laid up
|
N/A
|
N/A
|
N/A
|
||||||||
Average age based on year built/ Sum of DWT/ Total number of vessels
|
3.8 years
|
5,466
|
4
|
VLGCs
|
Redelivery
|
||||||||||||||
Year Built
|
CBM
|
Type
|
Current employment
or employment
upon delivery
|
Gross rate
per day
|
Earliest
|
Latest
|
|||||||||
Under construction:
|
|||||||||||||||
VLGC*
|
2017
|
78,700
|
VLGC
|
T/C
|
30,000
|
Jun-22
|
Jun-25
|
||||||||
VLGC** | 2017 | 78,700 | VLGC | T/C | 30,000 | Sep-22 | Sep-25 |
Redelivery
|
|||||||||||||||
Year Built
|
DWT
|
Type
|
Current employment
or employment
upon delivery
|
Gross rate
per day
|
Earliest
|
Latest
|
|||||||||
VLCCs
:
|
|||||||||||||||
VLCC*
|
2011
|
320,105
|
VLCC
|
Spot
|
N/A
|
N/A
|
N/A
|
Redelivery
|
|||||||||||||||
Year Built
|
DWT
|
Type
|
Current employment
or employment
upon delivery
|
Gross rate
per day
|
Earliest
|
Latest
|
|||||||||
Under construction
:
|
|||||||||||||||
Aframax Tanker*
|
2017
|
113,644
|
Aframax
|
Spot
|
N/A
|
N/A
|
N/A
|
Year Built
|
DWT
|
Type
|
Date of sale
|
|||||||
Drybulk Vessels
|
||||||||||
Capesize:
|
||||||||||
Rangiroa
|
2013
|
206,026
|
Capesize
|
Mar-16
|
||||||
Negonego
|
2013
|
206,097
|
Capesize
|
Mar-16
|
||||||
Fakarava
|
2012
|
206,152
|
Capesize
|
Mar-16
|
||||||
Panamax:
|
||||||||||
Coronado
|
2000
|
75,706
|
Panamax
|
Sep-16
|
||||||
Oregon
|
2002
|
74,204
|
Panamax
|
Sep-16
|
||||||
Samatan
|
2001
|
74,823
|
Panamax
|
Oct-16
|
||||||
Amalfi
|
2009
|
75,206
|
Panamax
|
Oct-16
|
||||||
Ocean Crystal
|
1999
|
73,688
|
Panamax
|
Nov-16
|
||||||
Sonoma
|
2001
|
74,786
|
Panamax
|
Nov-16
|
||||||
Sorrento
|
2004
|
76,633
|
Panamax
|
Nov-16
|
● |
Very Large Ore Carriers, or VLOCs, have a carrying capacity of more than 200,000 dwt and are a comparatively new sector of the drybulk carrier fleet. VLOCs are built to exploit economies of scale on long-haul iron ore routes.
|
● |
Capesize vessels, have carrying capacities of 110,000-199,999 dwt. These vessels generally operate along long-haul iron ore and coal trade routes. There are relatively few ports around the world with the infrastructure to accommodate vessels of this size.
|
● |
Panamax vessels, have a carrying capacity of between 60,000 and 85,000 dwt. These vessels carry coal, grains, and, to a lesser extent, minor bulks, including steel products, forest products and fertilizers. Panamax vessels are able to pass through the Panama Canal making them more versatile than larger vessels.
|
● |
Handymax vessels, have a carrying capacity of between 35,000 and 60,000 dwt. The subcategory of vessels that have a carrying capacity of between 45,000 and 60,000 dwt are called Supramax. These vessels operate along a large number of geographically dispersed global trade routes mainly carrying grains and minor bulks. Vessels below 60,000 dwt are sometimes built with on-board cranes enabling them to load and discharge cargo in countries and ports with limited infrastructure.
|
● |
Handysize vessels, have a carrying capacity of up to 35,000 dwt. These vessels carry exclusively minor bulk cargo. Increasingly, these vessels have operated along regional trading routes. Handysize vessels are well suited for small ports with length and draft restrictions that may lack the infrastructure for cargo loading and unloading.
|
● |
on-board installation of automatic identification systems to provide a means for the automatic transmission of safety-related information from among similarly equipped ships and shore stations, including information on a ship's identity, position, course, speed and navigational status;
|
● |
on-board installation of ship security alert systems, which do not sound on the vessel but only alert the authorities on shore;
|
● |
the development of vessel security plans;
|
● |
ship identification number to be permanently marked on a vessel's hull;
|
● |
a continuous synopsis record kept onboard showing a vessel's history including the name of the ship, the state whose flag the ship is entitled to fly, the date on which the ship was registered with that state, the ship's identification number, the port at which the ship is registered and the name of the registered owner(s) and their registered address; and
|
● |
compliance with flag state security certification requirements.
|
C. |
Organizational Structure
|
D. |
Property, Plant and Equipment
|
Item 4A. |
Unresolved Staff Comments
|
Item 5. |
Operating and Financial Review and Prospects
|
A. |
Operating Results
|
● |
Calendar days
. We define calendar days as the total number of days in a period during which each vessel in our fleet was in our possession including off-hire days associated with major repairs, drydockings or special or intermediate surveys and laid up days. Calendar days are an indicator of the size of our fleet over a period and affect both the amount of revenues and the amount of expenses that we record during that period.
|
● |
Voyage days
. We define voyage days as the total number of days in a period during which each vessel in our fleet was in our possession net of off-hire days associated with drydockings or special or intermediate surveys and laid up days. The shipping industry uses voyage days (also referred to as available days) to measure the number of days in a period during which vessels are available to generate revenues.
|
● |
Fleet utilization
. We calculate fleet utilization by dividing the number of our voyage days during a period by the number of our calendar days during that period. We use fleet utilization to measure a company's efficiency in finding suitable employment for its vessels and minimizing the amount of days that its vessels are off-hire for reasons such as scheduled repairs, vessel upgrades, drydockings or special or intermediate surveys.
|
● |
Spot charter rates
. Spot charter rates are volatile and fluctuate on a seasonal and year to year basis. Fluctuations are caused by imbalances in the availability of cargoes for shipment and the number of vessels available at any given time to transport these cargoes.
|
● |
TCE rates
. We define TCE rates as our voyage and time charter revenues less voyage expenses during a period divided by the number of our available days during the period, which is consistent with industry standards. TCE rate, a non-U.S. GAAP measure, provides additional meaningful information in conjunction with revenues from our drybulk carriers, the most directly comparable U.S. GAAP measure, because it assists Company management in making decisions regarding the deployment and use of its vessels and in evaluating their financial performance. TCE rate is also a standard shipping industry performance measure used primarily to compare daily earnings generated by vessels on time charters with daily earnings generated by vessels on voyage charters, because charterhire rates for vessels on voyage charters are generally not expressed in per day amounts while charterhire rates for vessels on time charters generally are expressed in such amounts.
|
Year Ended December 31,
|
||||||||||||||||||||
2012
|
2013
|
2014
|
2015
|
2016
|
||||||||||||||||
Average number of vessels
|
35.67
|
37.15
|
38.69
|
35.78
|
19.44
|
|||||||||||||||
Total voyage days for fleet
|
13,027
|
13,442
|
13,889
|
12,562
|
6,404
|
|||||||||||||||
Total calendar days for fleet
|
13,056
|
13,560
|
14,122
|
13,060
|
7,116
|
|||||||||||||||
Fleet Utilization
|
99.78
|
%
|
99.13
|
%
|
98.35
|
%
|
96.19
|
%
|
89.99
|
%
|
||||||||||
Time charter equivalent
|
$
|
15,896
|
$
|
12,062
|
$
|
12,354
|
$
|
9,171
|
$
|
3,658
|
● |
Employment Days
:
We defined employment days as the total number of days the drilling units were employed on a drilling contract.
|
● |
Dayrates or maximum dayrates
:
Unless otherwise stated, we defined 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 might be measured by quarter-hour, half-hour or hourly basis and might be reduced depending on the activity performed according to the drilling contract.
|
● |
Earnings efficiency:
We measured 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 provided for an operating or base rate that applied for the period during which the drilling unit was operational and at the client's drilling location. Furthermore, drilling contracts generally provided for a general repair allowance for preventive maintenance or repair of equipment; such allowance varied from contract to contract, and we might be compensated at the full operating dayrate or at a reduced operating day rate for such general repair allowance. In addition, drilling contracts typically provided for situations where the drilling units would operate at reduced operating dayrates, such as, among other things: a standby rate, where the drilling unit was prevented from commencing operations for reasons such as bad weather, waiting for customer orders, waiting on other contractors; a moving rate, where the drilling unit was in transit between locations; a reduced performance rate in the event of major equipment failure; or a force majeure rate in the event of a force majeure that causes the suspension of operations. At these instances we were compensated with a portion of the base rate. In addition there were circumstances that due to equipment failure or other events defined in our drilling contracts, we did not earn the base rate.
|
● |
Mobilization / demobilization fees
:
In connection with drilling contracts, we might receive revenues for preparation and mobilization of equipment and personnel or for capital improvements to the drilling units, dayrate or fixed price mobilization and demobilization fees.
|
● |
Revenue
:
For each contract, we determined whether the contract, for accounting purposes, was a multiple element arrangement, meaning it contained both a lease element and a drilling services element, and, if so, identified all deliverables (elements). For each element we determined how and when to recognize revenue.
|
● |
Vessel Revenues:
Vessel revenues primarily included revenues from spot and pool revenues. Vessel revenues were affected by spot rates and the number of days a vessel operated. Vessel revenues were also affected by the mix of business between vessels on spot and vessels in pools. Revenues from vessels in pools were more volatile, as they were typically tied to prevailing market rates.
|
● |
Voyage related and vessel operating costs:
Voyage expenses, primarily consisted of commissions, port, canal and bunker expenses that are unique to a particular charter, were paid for by us under voyage charter arrangements, except for commissions, which were either paid for by us or were deducted from the freight revenue. All voyage and vessel operating expenses were expensed as incurred, except for commissions. Commissions were deferred and amortized over the related voyage charter period to the extent revenue had been deferred since commissions were earned as our revenues were earned.
|
● |
Depreciation:
Depreciation expense typically consisted of charges related to the depreciation of the historical cost of our fleet (less an estimated residual value) over the estimated useful lives of the vessels.
|
● |
Drydocking:
We drydocked periodically each of our vessels for inspection, repairs and maintenance and any modifications to comply with industry certification or governmental requirements. Generally, each vessel is required to be drydocked every 30 months. We directly expensed costs incurred during drydocking and costs for routine repairs and maintenance performed during drydocking that did not improve or extend the useful lives of the assets. The number of drydockings undertaken in a given period and the nature of the work performed determined the level of drydocking expenditures.
|
● |
Time Charter Equivalent Rates:
Time charter equivalent, or TCE, rates, is a standard industry measure of the average daily revenue performance of a vessel. The TCE rate achieved on a given voyage was expressed in U.S. dollars/day and was generally calculated by subtracting voyage expenses, including bunkers and port charges, from voyage revenue and dividing the net amount (time charter equivalent revenues) by the number of days in the period.
|
● |
Revenue Days:
Revenue days were the total number of calendar days our vessels were in our possession during a period, less the total number of off-hire days during the period associated with major repairs or drydockings. Consequently, revenue days represented the total number of days available for the vessel to earn revenue. Idle days, which were days when a vessel was available to earn revenue, yet was not employed, were included in revenue days. We used revenue days to show changes in net voyage revenues between periods.
|
● |
Average Number of Vessels:
Historical average number of vessels consisted of the average number of vessels that were in our possession during a period. We used average number of vessels primarily to highlight changes in vessel operating costs and depreciation and amortization.
|
● |
Commercial Pools:
To increase vessel utilization to gain economies of scale and thereby revenues, we participated in commercial pools with other shipowners of similar modern, well-maintained vessels. By operating a large number of vessels as an integrated transportation system, commercial pools offer customers greater flexibility and a higher level of service while achieving scheduling efficiencies. Pools employ experienced commercial charterers and operators who have close working relationships with customers and brokers, while technical management is performed by each shipowner. Pools negotiate charters with customers primarily in the spot market. The size and scope of these pools enable them to enhance utilization rates for pool vessels by securing backhaul voyages and COAs, thus generating higher effective TCE revenues than otherwise might be obtainable in the spot market while providing a higher level of service offerings to customers.
|
● |
Calendar days
. We define calendar days as the total number of days in a period during which each vessel in our fleet was in our possession including off-hire days associated with major repairs, drydockings or special or intermediate surveys and laid up days. Calendar days are an indicator of the size of our fleet over a period and affect both the amount of revenues and the amount of expenses that we record during that period.
|
● |
Voyage days
. We define voyage days as the total number of days in a period during which each vessel in our fleet was in our possession net of off-hire days associated with drydockings or special or intermediate surveys and laid up days. The shipping industry uses voyage days (also referred to as available days) to measure the number of days in a period during which vessels are available to generate revenues.
|
● |
Fleet utilization
. We calculate fleet utilization by dividing the number of our voyage days during a period by the number of our calendar days during that period. The shipping industry uses fleet utilization to measure a company's efficiency in finding suitable employment for its vessels and minimizing the amount of days that its vessels are off-hire for reasons such as scheduled repairs, vessel upgrades, drydockings or special or intermediate surveys.
|
● |
TCE rates
. We define TCE rates as our time charter revenues less voyage expenses during a period divided by the number of our available days during the period, which is consistent with industry standards. TCE rate, a non-U.S. GAAP measure, provides additional meaningful information in conjunction with revenues from our offshore support vessels, the most directly comparable U.S. GAAP measure, because it assists our management in making decisions regarding the deployment and use of our vessels and in evaluating their financial performance. TCE rate is also a standard shipping industry performance measure used primarily to compare daily earnings generated by vessels on time charters with daily earnings generated by vessels on voyage charters, because charterhire rates for vessels on voyage charters are generally not expressed in per day amounts while charterhire rates for vessels on time charters generally are expressed in such amounts.
|
Year Ended December 31,
|
||||||||||||||||||||
2012
|
2013
|
2014
|
2015
|
2016
|
||||||||||||||||
Average number of vessels
|
-
|
-
|
-
|
6.0
|
6.0
|
|||||||||||||||
Total voyage days for fleet
|
-
|
-
|
-
|
426
|
1,615
|
|||||||||||||||
Total calendar days for fleet
|
-
|
-
|
-
|
426
|
2,196
|
|||||||||||||||
Fleet Utilization
|
-
|
-
|
-
|
100.0
|
%
|
73.54
|
%
|
|||||||||||||
Time charter equivalent
|
-
|
-
|
-
|
$
|
18,460
|
11,949
|
● |
obtain the charterer's consent to us as the new owner;
|
● |
obtain the charterer's consent to a new technical manager;
|
● |
in some cases, obtain the charterer's consent to a new flag for the vessel;
|
● |
arrange for a new crew for the vessel, and where the vessel is on charter, in some cases, the crew must be approved by the charterer;
|
● |
replace all hired equipment on board, such as gas cylinders and communication equipment;
|
● |
negotiate and enter into new insurance contracts for the vessel through our own insurance brokers;
|
● |
register the vessel under a flag state and perform the related inspections in order to obtain new trading certificates from the flag state;
|
● |
implement a new planned maintenance program for the vessel; and
|
● |
ensure that the new technical manager obtains new certificates for compliance with the safety and vessel security regulations of the flag state.
|
● |
employment and operation of our drybulk, tanker, LPG, and offshore support vessels; and
|
● |
management of the financial, general and administrative elements involved in the conduct of our business and ownership of our drybulk, LPG and tanker vessels and offshore support units.
|
● |
vessel maintenance and repair;
|
● |
crew selection and training;
|
● |
vessel spares and stores supply;
|
● |
contingency response planning;
|
● |
onboard safety procedures auditing;
|
● |
accounting;
|
● |
vessel insurance arrangement;
|
● |
vessel chartering;
|
● |
vessel security training and security response plans (ISPS);
|
● |
obtain ISM certification and audit for each vessel within the six months of taking over a vessel;
|
● |
vessel hire management;
|
● |
vessel surveying; and
|
● |
vessel performance monitoring.
|
● |
management of our financial resources, including banking relationships,
i.e.
, administration of bank loans and bank accounts;
|
● |
management of our accounting system and records and financial reporting;
|
● |
administration of the legal and regulatory requirements affecting our business and assets; and
|
● |
management of the relationships with our service providers and customers.
|
● |
Charter rates and periods of charterhire for our drybulk, tanker, LPG and offshore support vessels;
|
● |
levels of drybulk, tanker, LPG and offshore support vessels operating expenses;
|
● |
depreciation and amortization expenses;
|
● |
financing costs; and
|
● |
fluctuations in foreign exchange rates.
|
● |
reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values;
|
● |
news and industry reports of similar vessel sales;
|
● |
news and industry reports of sales of vessels that are not similar to our vessels where we have made certain adjustments in an attempt to derive information that can be used as part of our estimates;
|
● |
approximate market values for our vessels or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers have generally disseminated;
|
● |
offers that we may have received from potential purchasers of our vessels; and
|
● |
vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and various other shipping industry participants and observers.
|
Drybulk Vessels
|
Dwt
|
Year Built
|
Carrying Value December 31, 2015
(in millions)
|
Carrying Value December 31, 2016
(in millions)
|
||||||||||||
Sorrento
|
76,633
|
2004
|
6.9
|
**
|
—
|
|||||||||||
Mendocino
|
76,623
|
2002
|
5.4
|
**
|
5.0
|
**
|
||||||||||
Maganari
|
75,941
|
2001
|
5.0
|
**
|
4.6
|
**
|
||||||||||
Coronado
|
75,706
|
2000
|
4.5
|
**
|
—
|
|||||||||||
Ligari
|
75,583
|
2004
|
6.9
|
**
|
5.9
|
**
|
||||||||||
Rapallo
|
75,123
|
2009
|
9.4
|
**
|
8.5
|
**
|
||||||||||
Amalfi
|
75,206
|
2009
|
9.4
|
**
|
—
|
|||||||||||
Bargara
|
74,832
|
2002
|
4.7
|
**
|
4.3
|
**
|
||||||||||
Samatan
|
74,823
|
2001
|
4.2
|
**
|
—
|
|||||||||||
Capitola
|
74,816
|
2001
|
4.2
|
**
|
3.9
|
**
|
||||||||||
Sonoma
|
74,786
|
2001
|
4.2
|
**
|
—
|
|||||||||||
Majorca
|
74,477
|
2005
|
6.6
|
**
|
5.1
|
**
|
||||||||||
Redondo
|
74,716
|
2000
|
3.7
|
**
|
3.5
|
**
|
||||||||||
Catalina
|
74,432
|
2005
|
6.6
|
**
|
5.1
|
**
|
||||||||||
Oregon
|
74,204
|
2002
|
5.4
|
**
|
—
|
|||||||||||
Levanto
|
73,925
|
2001
|
4.2
|
**
|
3.9
|
**
|
||||||||||
Ecola
|
73,931
|
2001
|
4.2
|
**
|
3.9
|
**
|
||||||||||
Ocean Crystal
|
73,688
|
1999
|
4.0
|
**
|
—
|
|||||||||||
Marbella
|
72,561
|
2000
|
4.4
|
**
|
4.4
|
**
|
||||||||||
Raraka
|
76,037
|
2012
|
11.9
|
**
|
10.3
|
**
|
||||||||||
Fakarava
|
206,152
|
2012
|
29.5
|
**
|
—
|
|||||||||||
Rangiroa
|
206,026
|
2013
|
31.4
|
**
|
—
|
|||||||||||
Negonego
|
206,097
|
2013
|
31.4
|
**
|
—
|
|||||||||||
Total for drybulk vessels
|
2,116,318
|
$
|
208.1
|
$
|
68.4
|
Offshore support vessels
|
||||||||||||||||
Colorado
|
1,430
|
2012
|
12.9
|
***
|
3.6
|
***
|
||||||||||
Crescendo
|
1,457
|
2012
|
12.9
|
***
|
3.6
|
***
|
||||||||||
Jubilee
|
1,317
|
2012
|
17.6
|
***
|
5.0
|
***
|
||||||||||
Vega Emtoli
|
1,363
|
2012
|
17.6
|
***
|
5.0
|
***
|
||||||||||
Vega Jaanca
|
1,393
|
2012
|
17.7
|
***
|
5.0
|
***
|
||||||||||
Indigo
|
1,393
|
2013
|
17.7
|
***
|
5.0
|
***
|
||||||||||
Total for offshore support vessels
|
8,353
|
$
|
96.4
|
$
|
27.2
|
|||||||||||
2014
|
2015
|
2016
|
||||||||||
Average number of vessels
|
38.69
|
35.78
|
19.44
|
|||||||||
Total voyage days for fleet
|
13,889
|
12,562
|
6,404
|
|||||||||
Total calendar days for fleet
|
14,122
|
13,060
|
7,116
|
|||||||||
Fleet Utilization
|
98.35
|
%
|
96.19
|
%
|
89.99
|
%
|
||||||
Time charter equivalent
|
$
|
12,354
|
$
|
9,171
|
$
|
3,658
|
2014
|
2015
|
2016
|
||||||||||
Average number of vessels
|
10.00
|
6.21
|
-
|
|||||||||
Total voyage days for fleet
|
3,650
|
2,168
|
-
|
|||||||||
Total calendar days for fleet
|
3,650
|
2,267
|
-
|
|||||||||
Fleet Utilization
|
100
|
%
|
95.63
|
%
|
-
|
|||||||
Time charter equivalent
|
$
|
21,835
|
$
|
36,389
|
-
|
2014
|
2015
|
2016
|
||||||||||
Average number of vessels
|
-
|
6.0
|
6.0
|
|||||||||
Total voyage days for fleet
|
-
|
426
|
1,615
|
|||||||||
Total calendar days for fleet
|
-
|
426
|
2,196
|
|||||||||
Fleet Utilization
|
-
|
100.0
|
%
|
73.54
|
%
|
|||||||
Time charter equivalent
|
-
|
18,460
|
$
|
11,949
|
Year ended December 31,
|
Change
|
|||||||||||||||
2015
|
2016
|
|||||||||||||||
REVENUES:
|
||||||||||||||||
Revenues
|
$
|
969,825
|
$
|
51,934
|
$
|
(917,891
|
)
|
(94.6
|
)%
|
|||||||
EXPENSES:
|
||||||||||||||||
Voyage expenses
|
65,286
|
9,209
|
(56,077
|
)
|
(85.9
|
)%
|
||||||||||
Vessels and drilling units operating expenses
|
371,074
|
45,563
|
(325,511
|
)
|
(87.7
|
)%
|
||||||||||
Depreciation and amortization
|
227,652
|
3,466
|
(224,186
|
)
|
(98.5
|
)%
|
||||||||||
Loss on contract cancellation
|
28,241
|
-
|
(28,241
|
)
|
(100.0
|
)%
|
||||||||||
Impairment loss, (gain)/loss from sale of vessels and vessel owning companies and other
|
1,057,116
|
106,343
|
(950,773
|
)
|
(89.9
|
)%
|
||||||||||
Impairment on goodwill
|
-
|
7,002
|
7,002
|
-
|
||||||||||||
General and administrative expenses
|
104,912
|
39,708
|
(65,204
|
)
|
(62.2
|
)%
|
||||||||||
Legal settlements and other, net
|
(2,948
|
)
|
(258
|
)
|
2,690
|
(91.2
|
)%
|
|||||||||
Operating loss
|
(881,508
|
)
|
(159,099
|
)
|
722,409
|
(82.0
|
)%
|
|||||||||
OTHER INCOME /(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(172,132
|
)
|
(8,857
|
)
|
163,275
|
(94.9
|
)%
|
|||||||||
Gain on debt restructuring
|
-
|
10,477
|
10,477
|
-
|
||||||||||||
Interest income
|
527
|
81
|
(446
|
)
|
(84.6
|
)%
|
||||||||||
Gain/(Loss) on interest rate swaps
|
(11,601
|
)
|
403
|
12,004
|
(103.5
|
)%
|
||||||||||
Other, net
|
(9,275
|
)
|
(199
|
)
|
9,076
|
(97.9
|
)%
|
|||||||||
Total other income/(expenses), net
|
(192,481
|
)
|
1,905
|
194,386
|
(101.0
|
)%
|
||||||||||
LOSS BEFORE INCOME TAXES AND EARNINGS OF AFFILIATED COMPANIES
|
(1,073,989
|
)
|
(157,194
|
)
|
916,795
|
(85.4
|
)%
|
|||||||||
Loss due to deconsolidation of Ocean Rig
|
(1,347,106
|
)
|
-
|
1,347,106
|
100.0
|
%
|
||||||||||
Income taxes
|
(37,119
|
)
|
(38
|
)
|
37,081
|
(99.9
|
)%
|
|||||||||
Equity in net losses of Ocean Rig
|
(349,872
|
)
|
(41,454
|
)
|
308,418
|
(88.2
|
)%
|
|||||||||
NET LOSS
|
(2,808,086
|
)
|
(198,686
|
)
|
2,609,400
|
(92.9
|
)%
|
|||||||||
Less: Net (income)
attributable to non-controlling interests
|
(38,975
|
)
|
-
|
38,975
|
(100.0
|
)%
|
||||||||||
NET LOSS ATTRIBUTABLE TO DRYSHIPS INC.
|
$
|
(2,847,061
|
$
|
(198,686
|
)
)
|
$
|
2,648,375
|
(93.0
|
)%
|
Year ended December 31,
|
||||||||||||||||
2014
|
2015
|
Change
|
||||||||||||||
REVENUES:
|
||||||||||||||||
Revenues
|
$
|
2,185,524
|
$
|
969,825
|
$
|
(1,215,699
|
)
|
(55.6
|
)%
|
|||||||
EXPENSES:
|
||||||||||||||||
Voyage expenses
|
117,165
|
65,286
|
(51,879
|
)
|
(44.3
|
)%
|
||||||||||
Vessels and drilling units operating expenses
|
844,260
|
371,074
|
(473,186
|
)
|
(56.0
|
)%
|
||||||||||
Depreciation and amortization
|
449,792
|
227,652
|
(222,140
|
)
|
(49.4
|
)%
|
||||||||||
Loss on contract cancellation
|
1,307
|
28,241
|
26,934
|
2,060.7
|
%
|
|||||||||||
Impairment loss and loss from sale of vessels and vessel owning companies
|
38,148
|
1,057,116
|
1,018,968
|
2,671.1
|
%
|
|||||||||||
General and administrative expenses
|
193,686
|
104,912
|
(88,774
|
)
|
(45.8
|
)%
|
||||||||||
Legal settlements and other, net
|
(2,013
|
)
|
(2,948
|
)
|
(935
|
)
|
46.4
|
%
|
||||||||
Operating income/(loss)
|
543,179
|
(881,508
|
)
|
(1,424,687
|
)
|
(262.3
|
)%
|
|||||||||
OTHER INCOME /(EXPENSES):
|
||||||||||||||||
Interest and finance costs
|
(411,021
|
)
|
(172,132
|
)
|
238,889
|
(58.1
|
)%
|
|||||||||
Interest income
|
12,146
|
527
|
(11,619
|
)
|
(95.7
|
)%
|
||||||||||
Loss on interest rate swaps
|
(15,528
|
)
|
(11,601
|
)
|
3,927
|
(25.3
|
)%
|
|||||||||
Other, net
|
7,067
|
(9,275
|
)
|
(16,342
|
)
|
(231.2
|
)%
|
|||||||||
Total other expenses, net
|
(407,336
|
)
|
(192,481
|
)
|
214,855
|
(52.7
|
)%
|
|||||||||
INCOME/(LOSS) BEFORE INCOME TAXES AND EARNINGS OF AFFILIATED COMPANIES
|
135,843
|
(1,073,989
|
)
|
(1,209,832
|
)
|
(890.6
|
)%
|
|||||||||
Loss due to deconsolidation of Ocean Rig
|
-
|
(1,347,106
|
)
|
(1,347,106
|
)
|
-
|
||||||||||
Income taxes
|
(77,823
|
)
|
(37,119
|
)
|
40,704
|
(52.3
|
)%
|
|||||||||
Equity in net losses of Ocean Rig
|
-
|
(349,872
|
)
|
(349,872
|
)
|
-
|
||||||||||
NET INCOME/(LOSS)
|
58,020
|
(2,808,086
|
)
|
(2,866,106
|
)
|
(4,939.9
|
)%
|
|||||||||
Less: Net (income)
attributable to non-controlling interests
|
(105,532
|
)
|
(38,975
|
)
|
66,557
|
(63.1
|
)%
|
|||||||||
NET LOSS ATTRIBUTABLE TO DRYSHIPS INC.
|
$
|
(47,512
|
)
|
$
|
(2,847,061
|
)
|
$
|
(2,799,549
|
)
|
5,892.3
|
%
|
B. |
Liquidity and Capital Resources
|
C. |
Research and Development, Patents and Licenses etc.
|
D. |
Trend Information
|
E. |
Off-balance Sheet Arrangements
|
F. |
Tabular Disclosure of Contractual Obligations
|
Payments due by period
|
||||||||||||
Obligations
|
Total
|
Less than 1
year
|
1-3 years
|
|||||||||
(In thousands of Dollars)
|
||||||||||||
Long-term debt (1)
|
$
|
137,935
|
$
|
16,935
|
$
|
121,000
|
||||||
Interest
|
$
|
26,563
|
$
|
8,946
|
$
|
17,617
|
||||||
Total
|
$
|
164,498
|
$
|
25,881
|
$
|
138,617
|
(1) |
As further discussed in Note 4 and 11 to our consolidated financial statements, the outstanding balance of our long-term debt at December 31, 2016, was $16.9 million (gross of unamortized deferred financing fees of $0.1 million), included in current liabilities, and $121.0 million included in "Due to related parties", in the consolidated balance sheet included in this annual report. The above amounts were used to partially finance the expansion of our fleet and for general working capital purposes. The loans bear interest at LIBOR plus a margin, except for an amount of $2.0 million. The amounts in the table under "Long Term Debt" do not include any projected interest payments.
|
Loan repayments as per original terms of loan agreements
|
Payments due by period
|
|||||||||||||||
Total
|
Less than 1
year
|
1-3 years
|
3-5 years
|
|||||||||||||
(In thousands of Dollars)
|
||||||||||||||||
Long-term debt (1)
|
$
|
137,935
|
$
|
4,722
|
$
|
123,383
|
$
|
9,830
|
||||||||
Interest
|
$
|
28,423
|
$
|
9,499
|
$
|
18,795
|
$
|
129
|
||||||||
Total
|
$
|
166,358
|
$
|
14,221
|
$
|
142,178
|
$
|
9,959
|
G. |
Safe Harbor
|
Item 6. |
Directors and Senior Management
|
A. |
Directors and Senior Management
|
Name
|
Age
|
Position
|
|||
George Economou
|
64
|
Chairman, Chief Executive Officer and Class A Director
|
|||
Harry Kerames
|
62
|
Class B Director
|
|||
George Demathas
|
64
|
Class C Director
|
|||
Anthony Kandylidis(1)
|
39
|
President and Chief Financial Officer
|
|||
Ziad Nakhleh(2)
|
44
|
Chief Financial Officer
|
|||
Prokopios (Akis) Tsirigakis
|
62
|
Vice President of Offshore
|
|||
Dimitrios Dreliozis
|
40
|
Vice President of Finance
|
|||
Anastasia Pavli
|
35
|
Secretary
|
(1) |
Mr. Kandylidis was appointed President and Chief Financial Officer effective December 9, 2016.
|
B. |
Compensation of Directors and Senior Management
|
C. |
Board Practices
|
· |
engaging our external and internal auditors;
|
· |
approving in advance all audit and non-audit services provided by the auditors;
|
· |
approving all fees paid to the auditors;
|
· |
reviewing the qualification and independence of our external auditors;
|
· |
reviewing our relationship with external auditors, including considering audit fees which should be p
aid as well as any other fees which are payable to auditors in respect of non-audit activities, discussing with the external auditors such issues as compliance with accounting principles and any proposals which the external auditors have made vis-а-vis our
accounting principles and standards and auditing standards;
|
· |
overseeing our financial reporting and internal control functions;
|
· |
overseeing our whistleblower's process and protection; and
|
· |
overseeing general compliance with related regulatory requirements.
|
D. |
Employees
|
E. |
Share Ownership
|
Item 7. |
Major Shareholders and Related Party Transactions
|
A. |
Major Shareholders
|
· |
each person or entity that we know beneficially owns 5% or more of our common shares;
|
· |
each of our executive officers, directors and key employees; and
|
· |
all our executive officers, directors and key employees as a group.
|
Name and Address of Beneficial Owner
(1)
|
Number of
Shares Owned
|
Percent of
Class
(2)
|
||||||
George Economou
(3) (4)
|
9,837
|
*
|
%
|
|||||
Anthony Kandylidis
|
60
|
*
|
% | |||||
Executive Officers, Key Employees and Directors as a Group
|
9,897
|
*
|
%
|
* |
Less than one percent.
|
(1) |
Unless otherwise indicated, the business address of each beneficial owner identified is c/o DryShips, 109 Kifisias Avenue and Sina Street, Marousi GR 151 24 Greece.
|
(2) |
Based on 87,515,563 common shares outstanding as of March 2, 2017.
|
(3) |
Mr. Economou may be deemed to beneficially own 9,837 common shares of the Company, 912 of these shares through Elios Investments Inc., which is a wholly-owned subsidiary of the Entrepreneurial Spirit Foundation, a Lichtenstein foundation, or the Foundation, the beneficiaries of which are Mr. Economou and members of his family. Mr. Economou may be deemed to beneficially own 1,566 of these shares through Fabiana, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to beneficially own 21 of these shares through Goodwill Shipping Company Limited, a Malta corporation, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to beneficially own 4,842 of these shares, through Sphinx Investment Corp., a Marshall Islands corporation, of which Mr. Economou is the controlling person. Mr. Economou may be deemed to beneficially own 2,496 of these shares through Entrepreneurial Spirit Holdings Inc., a Liberian corporation that is wholly-owned by the Foundation.
|
(4) |
Excludes 29,166 shares of Series D Preferred Stock that
our Chairman and Chief Executive Officer, Mr. George Economou, may be deemed to beneficially own, directly or indirectly. The shares of Series D Preferred Stock each carry 100,000 votes. As of March 2, 2017, there were 29,166 shares of Series D Preferred Stock outstanding.
|
B. |
Related Party Transactions
|
C. |
Interests of Experts and Counsel
|
Item 8. |
Financial Information
|
A. |
Consolidated statements and other financial information.
|
Item 9. |
The Offer and Listing
|
Low | High | |||||||
December 31, 2012
|
$
|
18,960.00
|
$
|
44,880.00
|
||||
December 31, 2013
|
$
|
19,680.00
|
$
|
56,400.00
|
||||
December 31, 2014
|
$
|
9,361.20
|
$
|
51,720.00
|
||||
December 31. 2015
|
$
|
1,017.60
|
$
|
13,560.00
|
||||
December 31, 2016
|
$
|
29.52
|
$
|
1,923.60
|
For the Quarter Ended**
|
||||||||
March 31, 2015
|
$
|
8,760.00
|
$
|
13,560.00
|
||||
June 30, 2015
|
$
|
7,214.40
|
$
|
9,740.00
|
||||
September 30, 2015
|
$
|
1,903.20
|
$
|
8,103.60
|
||||
December 31, 2015
|
$
|
1,017.60
|
$
|
2,983.20
|
||||
March 31, 2016
|
$
|
1032.00
|
$
|
1,923.60
|
||||
June 30, 2016
|
$
|
270.24
|
$
|
1,924.80
|
||||
September 30, 2016
|
$
|
50.64
|
$
|
296.74
|
||||
December 31, 2016
|
$
|
28.40
|
$
|
584.00
|
For the Month Ended**
|
||||||||
October 2016
|
$
|
37.20
|
$
|
54.34
|
||||
November 2016
|
$
|
31.52
|
$
|
584.00
|
||||
December 2016
|
$
|
28.40
|
$
|
43.20
|
||||
January 2017
|
$
|
1.99
|
$
|
29.04
|
||||
February 2017
|
$
|
1.87
|
$
|
5.61
|
||||
March 2017 (through March 9, 2017)
|
$
|
1.27
|
|
$
|
1.91
|
|
Item 10. |
Additional Information
|
A. |
Share Capital
|
B. |
Memorandum and Articles of Association
|
C. |
Material Contracts
|
D. |
Exchange Controls
|
E. |
Taxation
|
· |
more than 50% of the Company's stock, in terms of value, is beneficially owned by individuals who are residents of a qualified foreign country, which the Company refers to as the "50% Ownership Test"; or
|
· |
the Company's stock is "primarily and regularly" traded on an established securities market located in the United States or in a qualified foreign country, which the Company refers to as the "Publicly Traded Test".
|
· |
at least 75% of our gross income for such taxable year consists of passive income (
e.g.
, dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
· |
at least 50% of the average value of the assets held by the Company during such taxable year produce, or are held for the production of, passive income.
|
· |
the excess distribution or gain would be allocated ratably over the Non-Electing U.S. Holders' aggregate holding period for the common shares;
|
· |
the amount allocated to the current taxable year and any taxable year before we became a PFIC would be taxed as ordinary income; and
|
· |
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed tax deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
· |
the gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business in the United States. If the Non-U.S. Holder is entitled to the benefits of an income tax treaty with respect to that gain, that gain is taxable only if it is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or
|
· |
the Non-U.S. Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
|
· |
ails to provide an accurate taxpayer identification number;
|
· |
is notified by the IRS that he has failed to report all interest or dividends required to be shown on his U.S. federal income tax returns; or
|
· |
in certain circumstances, fails to comply with applicable certification requirements.
|
F. |
Dividends and Paying Agents
|
G. |
Statement by Experts
|
H. |
Documents on Display
|
I. |
Subsidiary Information
|
Item 11. |
Quantitative and Qualitative Disclosures about Market Risk
|
Item 12. |
Description of Securities Other than Equity Securities
|
A. |
Debt Securities
|
B. |
Warrants and Rights
|
C. |
Other Securities
|
D. |
American Depository shares
|
Item 13. |
Defaults, Dividend Arrearages and Delinquencies
|
Item 14. |
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
Item 15. |
Controls and Procedures
|
Item 16A. |
Audit Committee Financial Expert
|
Item 16B. |
Code of Ethics
|
Item 16C. |
Principal Accountant Fees and Services
|
(U.S. Dollars in Thousands)
|
2015
|
2016
|
||||||
Audit and audit related fees
|
$
|
1,241
|
$
|
231
|
||||
Tax fees
|
122
|
-
|
||||||
Total fees
|
$
|
1,363
|
$
|
231
|
Item 16D. |
Exemptions from the Listing Standards for Audit Committees
|
Item 16E. |
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
Item 16F. |
Changes in Registrant's Certifying Accountant
|
Item 16G. |
Corporate Governance
|
· |
In lieu of obtaining shareholder approval prior to the issuance of designated securities or the adoption of equity compensation plans or material amendments to such equity compensation plans, we will comply with provisions of the BCA, providing that the board of directors approve share issuances and adoptions of and material amendments to equity compensation plans. Likewise, in lieu of obtaining shareholder approval prior to the issuance of securities in certain circumstances, consistent with the BCA and our amended and restated articles of incorporation and by-laws, the board of directors approves certain share issuances.
|
· |
Our board of directors will not hold regularly scheduled meetings at which only independent directors are present.
|
· |
As a foreign private issuer, we are not required to solicit proxies or provide proxy statements to Nasdaq pursuant to Nasdaq corporate governance rules or Marshall Islands law. Consistent with Marshall Islands law and as provided in our Amended and Restated Bylaws, we will notify our shareholders of meetings between 15 and 60 days before the meeting. This notification will contain, among other things, information regarding business to be transacted at the meeting. In addition, our Amended and Restated Bylaws provide that shareholders must give us between 150 and 180 days advance notice to properly introduce any business at a meeting of shareholders.
|
Item 16H. |
Mine Safety Disclosure
|
Item 17. |
Financial Statements
|
Item 18. |
Financial Statements
|
Item 19. |
Exhibits
|
1.1 |
Articles of Amendment to Articles of Incorporation of DryShips Inc., incorporated by reference to Exhibit 3.1 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on January 18, 2008.
|
1.2 |
Second Amended and Restated Bylaws of DryShips Inc., incorporated by reference to Exhibit 1 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on May 7, 2015.
|
2.1 |
Form of Common Share Certificate, incorporated by reference to Exhibit 2.1 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
2.2 |
Form of Global Note, incorporated by reference to Exhibit 2.2 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
2.3 |
Certificate of Designations of Rights, Preferences and Privileges of Series A Convertible Preferred Stock of DryShips Inc., incorporated by reference to Exhibit 2.5 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
2.4 |
Certificate of Designations of Rights, Preferences and Privileges of Series B Convertible Preferred Stock of DryShips Inc, incorporated by reference to Exhibit 1.4 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
2.5 |
Statement of Designations, Preferences and Rights of the Series C Convertible Preferred Stock of DryShips Inc., incorporated by reference to Exhibit 3.1 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on June 8, 2016.
|
2.6 |
Certificate of Designation of Rights, Preferences and Privileges of Series D Preferred Stock of DryShips Inc.
|
2.7 |
Statement of Designations, Preferences and Rights of the Series E-1 Convertible Preferred Stock of DryShips Inc., incorporated by reference to Exhibit 3.1 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on November 17, 2016.
|
2.8 |
Statement of Designations, Preferences and Rights of the Series E-2 Convertible Preferred Stock of DryShips Inc., incorporated by reference to Exhibit 3.2 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on November 17, 2016.
|
4.1 |
Stockholders Rights Agreement, dated January 18, 2008, by and between DryShips Inc. and American Stock Transfer & Trust Company, as Rights Agent, incorporated by reference to Exhibit 4.2 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on January 18, 2008.
|
4.2 |
Amendment No. 1, dated as July 9, 2009, to Stockholders Rights Agreement, incorporated by reference to Exhibit 99.1 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on July 15, 2009.
|
4.3 |
Amendment No. 2, dated as of April 21, 2010, to Stockholders Rights Agreement, incorporated by reference to Exhibit 99.1 to the Registration Statement on Form 8-A of DryShips Inc., filed with the SEC on April 27, 2010.
|
4.4 |
Amended and Restated 2008 Equity Incentive Plan of DryShips Inc., incorporated by reference to Exhibit 4.1 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
4.5 |
Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, incorporated by reference to Exhibit 4.40 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2008, filed with the SEC on March 30, 2009.
|
4.6 |
Waiver Letter, dated July 22, 2009, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, incorporated by reference to Exhibit 4.63 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.7 |
First Supplemental Agreement, dated October 8, 2009, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, incorporated by reference to Exhibit 4.46 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2009, filed with the SEC on April 9, 2010.
|
4.8 |
Waiver Letter, dated November 23, 2009, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, as amended, incorporated by reference to Exhibit 4.65 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.9 |
Amending and Restating Loan Agreement, dated January 18, 2010, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, as supplemented and amended by a first supplemental agreement dated October 8, 2009, incorporated by reference to Exhibit 4.66 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.10 |
Supplemental Letter, dated June 10, 2010, to a Loan Agreement, dated June 20, 2008, by and among Aegean Traders Inc. and Iguana Shipping Company Limited, as Borrowers, and WestLB AG, as Lender, relating to a loan facility of up to $103,200,000, as amended and supplemented by a supplemental agreement dated October 8, 2009 and as amended and restated by an amending and restating agreement dated January 18, 2010, incorporated by reference to Exhibit 4.67 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.11 |
Commitment Letter, dated February 13, 2012, by and between the Company and HSH Nordbank AG relating to a term loan facility of up to $87,653,740, incorporated by reference to Exhibit 4.107 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2011, filed with the SEC on March 16, 2012.
|
4.12 |
Loan Agreement, dated March 19, 2012, by and among Amathus Owning Company Limited, Symi Owners Inc. and Kalymnos Owners Inc., as joint and several Borrowers, and the banks and financial institutions listed therein, as Lenders, and HSH Nordbank AG, as Agent, Mandated Lead Arranger, Swap Bank and Security Trustee, relating to a loan facility of up to $87,653,740, incorporated by reference to Exhibit 4.118 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2012 filed with the SEC on March 22, 2013.
|
4.13 |
Form of Vessel Management Agreement, dated January 1, 2011 with TMS Bulkers Ltd., incorporated by reference to Exhibit 4.112 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.14 |
Form of Vessel Management Agreement, dated December 28, 2010 with TMS Tankers Ltd., incorporated by reference to Exhibit 4.113 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.15 |
Consultancy Agreement, dated September 1, 2010, by and between DryShips Inc. and Vivid Finance Inc., incorporated by reference Exhibit 2 to the Report on Form 6-K of DryShips Inc., filed with the SEC on September 7, 2010, incorporated by reference to Exhibit 4.114 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2010, filed with the SEC on April 15, 2011.
|
4.16 |
Addendum No. 1, dated January 1, 2013, to the Consultancy Agreement, dated September 1, 2010, by and between the Company and Vivid Finance Inc., incorporated by reference to exhibit 4.41 to the Annual Report on Form 20-F of Ocean Rig UDW Inc. for the fiscal year ended December 31, 2012, filed with the SEC on March 22, 2013.
|
4.17 |
Form of Vessel Management Agreement, dated May 7, 2014, by and between Chloe Owning Company Limited and TMS Bulkers Ltd., incorporated by reference to Exhibit 4.178 to the Annual Report on Form 20-F of DryShips for the fiscal year ended December 31, 2014, filed with the SEC on March 10, 2015.
|
4.18 |
Second Supplemental Agreement, dated November 12, 2014, to a Loan Agreement dated June 20, 2008, by and among Aegean Traders Inc., as Borrower, DryShips Inc., as Corporate Guarantor and Portigon AG, London Branch, as Lender, relating to a loan facility of up to $103,200,000, incorporated by reference to Exhibit 4.183 to the Annual Report on Form 20-F of DryShips for the fiscal year ended December 31, 2014, filed with the SEC on March 10, 2015.
|
4.19 |
Management Agreement, dated August 27, 2013, by and between Vega Inruda AS., as the Owner, and TMS Offshore Services Ltd., as the Manager, 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, 2015, filed with the SEC on April 27, 2016.
|
4.20 |
Management Agreement, dated September 6, 2013, by and between Vega Jaanca AS., as the Owner, and TMS Offshore Services Ltd., as the Manager, incorporated by reference to Exhibit 4.82 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.21 |
Management Agreement, dated September 11, 2013, by and between Vega Crusader AS., as the Owner, and TMS Offshore Services Ltd., as the Manager, incorporated by reference to Exhibit 4.83 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.22 |
Management Agreement, dated September 11, 2013, by and between Vega Emtoli AS., as the Owner, and TMS Offshore Services Ltd., as the Manager, 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, 2015, filed with the SEC on April 27, 2016.
|
4.23 |
Management Agreement, dated September 20, 2013, by and between Vega Juniz AS., as the Owner, and TMS Offshore Services Ltd., as the Manager, 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, 2015, filed with the SEC on April 27, 2016.
|
4.24 |
Management Agreement, dated September 26, 2013, by and between Vega Corona AS., as the Owner, and TMS Offshore Services Ltd., as the Manager, incorporated by reference to Exhibit 4.86 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.25 |
Memorandum of Agreement by and between Olympian Athena Owners Inc and TMS Tankers LTD for the sale of the vessel Alicante, dated April 30, 2015, incorporated by reference to Exhibit 4.87 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.26 |
Memorandum of Agreement by and between Olympian Poseidon Owners Inc and TMS Tankers LTD for the sale of the vessel Belmar, dated April 30, 2015, incorporated by reference to Exhibit 4.88 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.27 |
Memorandum of Agreement by and between Olympian Aphrodite Owners Inc and Arabella Owning Company Limited for the sale of the vessel Bordeira, dated April 30, 2015, incorporated by reference to Exhibit 4.89 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.28 |
Memorandum of Agreement by and between Olympian Demeter Owners Inc and TMS Tankers LTD for the sale of the vessel Calida, dated April 30, 2015, incorporated by reference to Exhibit 4.90 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.29 |
Memorandum of Agreement by and between Olympian Hera Owners Inc and TMS Tankers LTD for the sale of the vessel Daytona, dated April 30, 2015, incorporated by reference to Exhibit 4.91 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.30 |
Memorandum of Agreement by and between Olympian Ares Owners Inc and Alceste Owning Company Limited for the sale of the vessel Lipari, dated April 30, 2015, incorporated by reference to Exhibit 4.92 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.31 |
Memorandum of Agreement by and between Olympian Dionysus Owners Inc and TMS Tankers LTD for the sale of the vessel Mareta, dated April 30, 2015, incorporated by reference to Exhibit 4.93 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.32 |
Memorandum of Agreement by and between Olympian Artemis Owners Inc and Mireille Owning Company Limited for the sale of the vessel Petalidi, dated April 30, 2015, incorporated by reference to Exhibit 4.94 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.33 |
Memorandum of Agreement by and between Olympian Zeus Owners Inc and TMS Tankers LTD for the sale of the vessel Saga, dated April 30, 2015, incorporated by reference to Exhibit 4.95 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.34 |
Memorandum of Agreement by and between Olympian Apollo Owners Inc and Semele Owning Company Limited for the sale of the vessel Vilamoura, dated April 30, 2015, incorporated by reference to Exhibit 4.96 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.35 |
Amended and Restated Secured Exchangeable Promissory Note, dated June 4, 2015, by and between DryShips Inc. and Ocean Rig UDW, Inc., incorporated by reference to Exhibit 4.97 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.36 |
Addendum No 1 to the Memorandum of Agreement, dated April 30, 2015 between Olympian Poseidon Owners Inc and TMS Tankers LTD for the sale of the vessel Belmar, dated June 30, 2015, incorporated by reference to Exhibit 4.98 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.37 |
Termination, Release and Share Transfer Agreement, dated August 13, 2015, by and among DryShips Inc., Alley Finance Co and Ocean Rig UDW Inc., incorporated by reference to Exhibit 4.99 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.38 |
Share Purchase Agreement dated September 9, 2015, by and among, Alivia Investments Inc., as Buyer, TMS Bulkers Ltd., as Buyers' Guarantor, DryShips Inc. as Seller 1 and Oceanfreight Inc., as Seller II, incorporated by reference to Exhibit 4.100 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.39 |
Share Purchase Agreement, dated September 9, 2015, by and among Rossela Owning Company Limited as Buyer, TMS Bulkers Ltd. as Buyers' Guarantor, Dalian Star Shareholdings Inc. as Seller and DryShips Inc. as Guarantor, incorporated by reference to Exhibit 4.101 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.40 |
Memorandum of Agreement, dated September 9, 2015 between Thelma Shipping Company Limited and Magenta Owning Company Limited for the sale of the vessel Manasota, incorporated by reference to Exhibit 4.102 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.41 |
Memorandum of Agreement, dated September 9, 2015 between Norwalk Star Owners Inc and Aurelia Owning Company Limited for the sale of the vessel Capri, incorporated by reference to Exhibit 4.103 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.42 |
Memorandum of Agreement, dated September 9, 2015 between Fabiana Navigation Company Limited and Amaya Owning Company Limited for the sale of the vessel Alameda, incorporated by reference to Exhibit 4.104 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.43 |
Addendum No 1 to the Memorandum of Agreement, dated September 9, 2015 between Thelma Shipping Company Limited and Magenta Owning Company Limited, dated September 29, 2015, incorporated by reference to Exhibit 4.105 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.44 |
Addendum No 1 to the Share Purchase Agreement, dated September 9, 2015 between Alivia Investments Inc and Dryships Inc and Oceanfreight Inc., dated October 9, 2015, incorporated by reference to Exhibit 4.106 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.45 |
Share Purchase Agreement, dated October 21, 2015, by and among DryShips Inc., Mezzanine Financing Investment III Shareholders Ltd. and Red River Enterprises Inc., incorporated by reference to Exhibit 4.107 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.46 |
Secured Revolving Facility Agreement, dated October 21, 2015, by and between DryShips Inc. as Borrower and Sifnos Shareholders Inc., as Lender, incorporated by reference to Exhibit 4.108 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.47 |
First Amendment to the Secured Revolving Facility Agreement, dated October 21, 2015 by and between DryShips Inc. as Borrower and Sifnos Shareholders Inc., as Lender, dated November 11, 2015, incorporated by reference to Exhibit 4.109 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.48 |
Share Purchase Agreement, dated November 24, 2015, by and between Mezzanine Financing Investment III Ltd., a subsidiary of DryShips Inc., as buyer. and VRG AS, as seller, for the purchase of all of the shares the buyer holds in Nautilus Offshore Services, Inc., incorporated by reference to Exhibit 4.110 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.49 |
Share Purchase Agreement by and among Tidore Investments Inc., whose performance is guaranteed by TMS Bulkers Ltd., and Oceanfreight Inc., whose performance is guaranteed by DryShips Inc., dated March 24, 2016, incorporated by reference to Exhibit 4.111 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.50 |
Second Amendment to the Secured Revolving Facility Agreement dated October 21, 2015, as amended, between Dryships Inc. and Sifnos Shareholders Inc., dated March 24, 2016.
|
4.51 |
Preferred Stock Exchange Agreement dated March 24, 2016 between DryShips Inc. and Sifnos Shareholders Inc. relating to the Secured Revolving Facility Agreement, dated October 21, 2015, as amended.
|
4.52 |
Memorandum of Agreement between Vega Crusader AS, as Sellers and Dianthus Maritime Ltd, as Buyers, for the sale of the vessel Crescendo (ex Vega Crusader), dated March 29, 2016.
|
4.53 |
Memorandum of Agreement between Vega Juniz AS, as Sellers and Fiore Shipping Ltd, as Buyers, for the sale of the vessel Jubilee (ex Vega Juniz), dated March 29, 2016.
|
4.54 |
Agreement between Ocean Rig Global Chartering Inc. and Dianthus Maritime Ltd for the time charter of the vessel Crescendo, dated March 29, 2016.
|
4.55 |
Agreement between Ocean Rig Global Chartering Inc. and Fiore Shipping Inc for the time charter of the vessel Jubilee, dated March 29, 2016.
|
4.56 |
Stock Purchase Agreement by and between DryShips Inc. and Ocean Rig Investments Inc., dated April 5, 2016, incorporated by reference to Exhibit 4.112 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.57 |
Amended and Restated Secured Revolving Facility Agreement by and between DryShips Inc. and Sifnos Shareholders Inc., dated as of April 5, 2016, incorporated by reference to Exhibit 4.113 to the Annual Report on Form 20-F of DryShips Inc. for the fiscal year ended December 31, 2015, filed with the SEC on April 27, 2016.
|
4.58 |
Memorandum of Agreement between Vega Inruda AS, as Sellers and Newmont Chartering Limited, as Buyers, for the sale of the vessel Indigo (ex Vega Inruda), dated May 1, 2016.
|
4.59 |
Form of Securities Purchase Agreement between DryShips Inc. and an institutional investor, incorporated by reference to Exhibit 10.1 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on June 8, 2016.
|
4.60 |
Memorandum of Agreement between Malvina Shipping Company Limited and Ocean Star Shipping Limited for the sale of the vessel Coronado, dated August 22, 2016.
|
4.61 |
Memorandum of Agreement between Karmen Shipping Company Limited and Proper In Management Inc. for the sale of the vessel Sonoma, dated September 5, 2016.
|
4.62 |
First Amendment and Waiver between Dryships Inc. and Sifnos Shareholders Inc. relating to the Amended and Restated Secured Revolving Facility Agreement, dated September 9, 2016.
|
4.63 |
Share Purchase Agreement between Evita Shareholders Limited, as buyer, and Iason Shareholdings Limited, as seller, for the sale of all of the issued and outstanding capital stock of Iason Owning Company Limited, dated September 16, 2016.
|
4.64 |
Memorandum of Agreement between Samsara Shipping Company Limited and Ningbo Zhun Xing Shipping Ltd for the sale of the vessel Ocean Crystal, dated September 27, 2016.
|
4.65 |
Memorandum of Agreement between Aegean Traders Inc. and Synergasia Investment Corporation for the sale of the vessel Sorrento, dated October 8, 2016.
|
4.66 |
Share Purchase Agreement between Severo Shareholders Limited, as buyer, and Boone Star Shareholders Inc., as seller, for the sale of all the issued and outstanding capital stock of Boone Star Owners Inc, dated October 26, 2016.
|
4.67 |
Share Purchase Agreement between Aliana Shareholders Limited, as buyer, and Iokasti Shareholdings Limited, as seller, for the sale of all the issued and outstanding capital stock of Iokasti Owning Company Limited, dated October 26, 2016.
|
4.68 |
Share Purchase Agreement between Rosalia Shareholders Limited, as buyer, and Azalea Shareholders Limited, as seller, for the sale of all the issued and outstanding capital stock of Ialysos Owning Company Limited, dated October 26, 2016.
|
4.69 |
Side Letter dated October 26, 2016 between Evita Shareholders Limited, TMS Bulkers Ltd, Iason Shareholdings Limited and DryShips Inc. regarding a Share Purchase Agreement, dated September 16, 2016.
|
4.70 |
Side Letter dated October 26, 2016 between Aliana Shareholders Limited, TMS Bulkers Ltd, Iokasti Shareholdings Limited and DryShips Inc. regarding a Share Purchase Agreement, dated October 26, 2016.
|
4.71 |
Side Letter dated October 26, 2016 between Severo Shareholders Limited, TMS Bulkers Ltd, Boone Star Shareholders Inc. and DryShips Inc. regarding a Share Purchase Agreement, dated October 26, 2016.
|
4.72 |
Side Letter dated October 26, 2016 between Rosalia Shareholders Limited, TMS Bulkers Ltd, Azalea Shareholders Limited and DryShips Inc. regarding a Share Purchase Agreement, dated October 26, 2016.
|
4.73 |
Second Amendment and Waiver between Dryships Inc. and Sifnos Shareholders Inc. relating to the Amended and Restated Secured Revolving Facility Agreement, dated October 31, 2016.
|
4.74 |
Form of Securities Purchase Agreement between DryShips Inc. and an institutional investor, incorporated by reference to Exhibit 10.1 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on November 17, 2016.
|
4.75 |
Settlement, Release and Supplemental Facility agreement by and between Aegean Traders Inc. as Borrower, Dryships Inc., as Guarantor and Portigon AG, as Lender, dated November 18, 2016.
|
4.76 |
Sale and Transfer Deed in relation to a Junior Loan Agreement amongst DryShips Inc., as Borrower, Advice Investments S.A., as Purchaser, and HSH Nordbank AG, as Assigning Lender, Swap Bank, Lead Bookrunner, Agent, and Security Trustee, dated November 30, 2016.
|
4.77 |
Sale and Transfer Deed in relation to a Senior Loan Agreement amongst DryShips Inc., as Borrower, Advice Investments S.A., as Purchaser, each of HSH Nordbank AG, Bank of America, N.A., Unicredit Bank AG, Nataxis and Santander Asset Finance PLC as Participating Senior Lenders, and HSH Nordbank AG, as Senior Swap Bank, Lead Bookrunner, Agent, and Security Trustee, dated November 30, 2016.
|
4.78 |
Agency Transfer Agreement in respect of a Senior Term Loan and Junior Term Loan amongst DryShips Inc., Advice Investments S.A., as Senior and Junior Lenders, HSH Nordbank AG as Retiring Agent and Retiring Security Trustee and Advice Investments S.A. as Successor Agent and Successor Security Trustee, dated November 30, 2016.
|
4.79 |
Sale and Transfer Deed in relation to a Senior and Junior Loan, dated November 30, 2016.
|
4.80 |
Side Letter between Advice Investments S.A. and Sifnos Shareholders Inc., dated November 30, 2016.
|
4.81 |
Transfer Certificate between HSH Nordbank AG and Advice Investments S.A., dated November 30, 2016.
|
4.82 |
Transfer Certificate between Santander Asset Finance PLC and Advice Investments S.A., dated November 30, 2016.
|
4.83 |
Transfer Certificate between Unicredit Bank AG and Advice Investments S.A., dated November 30, 2016.
|
4.84 |
Transfer Certificate between HSH Nordbank AG and Advice Investments S.A., dated November 30, 2016.
|
4.85 |
Transfer Certificate between Nataxis and Advice Investments S.A., dated November 30, 2016.
|
4.86 |
Transfer Certificate between Bank of America, N.A. and Advice Investments S.A., dated November 30, 2016.
|
4.87 |
Notice of Sale and Transfer, dated November 30, 2016.
|
4.88 |
Common Stock Purchase Agreement between DryShips Inc. and Kalani Investments Limited dated December 23, 2016, incorporated by reference to Exhibit 1.1 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on December 27, 2016.
|
4.89 |
Secured Revolving Facility Agreement by and between DryShips Inc. and Sifnos Shareholders Inc., dated December 30, 2016.
|
4.90 |
Option Agreement between DryShips Inc. and certain clients of TMS Cardiff Gas Ltd., dated January 12, 2017.
|
4.91 |
Share Purchase Agreement between LPG Investments Inc. and VLGC Alpha Shareholding Ltd., for the purchase of all the issued and outstanding capital stock of VLGC Alpha Owning Ltd, dated January 18, 2017.
|
4.92 |
Memorandum of Agreement between Dat Atlantic Eternity S.A. and Regina Owners Inc for the newbuilding Hull No. S811, dated February 10, 2017.
|
4.93 |
Memorandum of Agreement between Andromeda Maritime Limited and Tortuga Owners Inc. for the vessel Orthis, dated February 14, 2017.
|
4.94 |
Common Stock Purchase Agreement between DryShips Inc. and Kalani Investments Limited dated February 17, 2017, incorporated by reference to Exhibit 1.1 of the Current Report on Form 6-K of DryShips Inc., filed with the SEC on February 17, 2017.
|
4.95 |
Agreement, dated December 9, 2016, among Dryships Inc., TMS Bulkers Inc., and TMS Offshore Services Ltd.
|
4.96 |
Termination Agreement, dated December 28, 2016, between DryShips Inc. and Vivid Finance Limited.
|
4.97 |
Memorandum of Agreement, dated January 27, 2017, between Vega Corona AS and Darden Shipholding S.A.
|
4.98 |
Share Purchase Agreement between LPG Investments Inc. and VLGC Beta Shareholding Ltd., for the purchase of all the issued and outstanding capital stock of VLGC Beta Owning Ltd, dated March 9, 2017.
|
8.1 |
Subsidiaries of DryShips Inc.
|
12.1 |
Rule 13a-14(a)/15d-14(a) Certification of Principal Executive Officer.
|
12.2 |
Rule 13a-14(a)/15d-14(a) Certification of Principal Financial Officer.
|
13.1 |
Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
13.2 |
Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
15.1 |
Consent of Independent Registered Public Accounting Firm (Ernst & Young (Hellas) Certified Auditors Accountants S.A.).
|
101 |
The following materials from the Company's Annual Report on Form 20-F for the fiscal year ended December 31, 2016, formatted in eXtensible Business Reporting Language (XBRL): (i) Consolidated Balance Sheets as of December 31, 2015 and 2016; (ii) Consolidated Statements of Operations for the years ended December 31, 2014, 2015 and 2016; (iii) Consolidated Statements of Comprehensive Income for the years ended December 31, 2014, 2015 and 2016; (iv) Consolidated Statements of Stockholders' Equity for the years ended December 31, 2014, 2015 and 2016; (v) Consolidated Statements of Cash Flows for the years ended December 31, 2014, 2015 and 2016; and (v) the Notes to Consolidated Financial Statements.
|
DRYSHIPS INC.
|
||
(Registrant)
|
||
Date: March 13, 2017
|
By:
|
/s/ Anthony Kandylidis
|
Anthony Kandylidis
|
||
President and Chief Financial Officer
|
||
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, 2015 and 2016
|
F-4
|
Consolidated Statements of Operations for the years ended December 31, 2014, 2015 and 2016
|
F-6
|
Consolidated Statements of Comprehensive Loss for the years ended December 31, 2014, 2015 and 2016
|
F-7
|
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2014, 2015 and 2016
|
F-8
|
Consolidated Statements of Cash Flows for the years ended December 31, 2014, 2015 and 2016
|
F-10
|
Notes to Consolidated Financial Statements
|
F-12
|
STOCKHOLDERS' EQUITY:
|
||||||||
Preferred stock, $0.01 par value; 500,000,000 shares authorized at December 31, 2015 and 2016; 100,000,000 shares designated as Series A Convertible preferred stock; 100,000,000 shares designated as Series B Convertible preferred stock, 10,000 shares designated as Series C Convertible Preferred stock, 3,500,000 shares designated as Series D Preferred stock, 50,000 shares designated as Series E-1 Convertible Preferred Stock, and 50,000 shares designated as Series E-2 Convertible Preferred Stock; 0 shares of Series A Convertible Preferred stock issued and outstanding at December 31, 2015 and 2016; 8,333 (66,667 before the 1-for-8 reverse stock split) and 0 shares of Series B Convertible Preferred stock issued and outstanding at December 31, 2015 and 2016, respectively, 0 shares of Series C Convertible Preferred stock issued and outstanding at December 31, 2015 and 2016, 0 and 29,166 (233,333 before the 1-for-8 reverse stock split) of Series D Preferred stock issued and outstanding at December 31, 2015 and 2016, respectively, 0 shares of Series E1 Convertible Preferred stock issued and outstanding at December 31, 2015 and 2016 and 0 shares of Series E2 Convertible Preferred stock issued and outstanding at December 31, 2015 and 2016 (Note 13)
|
-
|
-
|
||||||
Common stock, $0.01 par value; 1,000,000,000 shares authorized at December 31, 2015 and 2016; 59,014 shares (472,109 before the 1-for-8 reverse stock split) and 4,617,142 shares (36,937,133 before the 1-for-8 reverse stock split ) issued and outstanding at December 31, 2015 and 2016, respectively (Note 13)
|
1
|
46
|
||||||
Treasury stock; $0.01 par value; 3,009 shares (24,078 shares before the 1-for-8 reverse stock split) at December 31, 2015 and 2016 (Note 13)
|
-
|
-
|
||||||
Additional paid-in capital (Note 13)
|
3,225,147
|
3,360,078
|
||||||
Accumulated other comprehensive income (Note 16)
|
233
|
-
|
||||||
Accumulated deficit
|
(3,103,969
|
)
|
(3,310,350
|
)
|
||||
Total equity
|
121,412
|
49,774
|
||||||
Total liabilities and stockholders' equity
|
$
|
476,052
|
$
|
193,730
|
Year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
REVENUES:
|
||||||||||||
Voyage and time charter revenues (including amortization of above market acquired time charters)
|
$
|
368,447
|
$
|
244,020
|
$
|
51,934
|
||||||
Service revenues, net
|
1,817,077
|
725,805
|
-
|
|||||||||
Total Revenues (Notes 2,4 and 18)
|
$
|
2,185,524
|
$
|
969,825
|
$
|
51,934
|
||||||
OPERATING EXPENSES/(INCOME):
|
||||||||||||
Voyage expenses (Notes 2 and 4)
|
117,165
|
65,286
|
9,209
|
|||||||||
Vessels and drilling units operating expenses
|
844,260
|
371,074
|
45,563
|
|||||||||
Depreciation and amortization (Notes 7)
|
449,792
|
227,652
|
3,466
|
|||||||||
Loss on contract cancellation (Note 6 and 15.2)
|
1,307
|
28,241
|
-
|
|||||||||
Impairment loss, (gain)/loss from sale of vessels and vessel owning companies and other (Notes 4, 7 and 12)
|
38,148
|
1,057,116
|
106,343
|
|||||||||
Impairment on goodwill (Notes 2c and 8)
|
-
|
-
|
7,002
|
|||||||||
General and administrative expenses (Note 4)
|
193,686
|
104,912
|
39,708
|
|||||||||
Legal settlements and other, net (Note 15.1)
|
(2,013
|
)
|
(2,948
|
)
|
(258
|
)
|
||||||
Operating income/(loss)
|
543,179
|
(881,508
|
)
|
(159,099
|
)
|
|||||||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs (Notes 4 and 17)
|
(411,021
|
)
|
(172,132
|
)
|
(8,857
|
)
|
||||||
Gain on debt restructuring (Note 11)
|
-
|
-
|
10,477
|
|||||||||
Interest income
|
12,146
|
527
|
81
|
|||||||||
Gain/(Loss) on interest rate swaps (Note 12)
|
(15,528
|
)
|
(11,601
|
)
|
403
|
|||||||
Other, net (Note 12)
|
7,067
|
(9,275
|
)
|
(199
|
)
|
|||||||
Total other income/(expenses), net
|
(407,336
|
)
|
(192,481
|
)
|
1,905
|
|||||||
INCOME/(LOSS) BEFORE INCOME TAXES AND EARNINGS OF AFFILIATED COMPANIES
|
135,843
|
(
1,073,989
|
)
|
(157,194
|
)
|
|||||||
Loss due to deconsolidation of Ocean Rig (Note 10 and 12)
|
-
|
(
1,347,106
|
)
|
-
|
||||||||
Income taxes (Note 20)
|
(77,823
|
)
|
(37,119
|
)
|
(38
|
)
|
||||||
Equity in net losses of Ocean Rig (Note 10)
|
-
|
(349,872
|
)
|
(41,454
|
)
|
|||||||
NET INCOME/(LOSS)
|
58,020
|
(
2,808,086
|
)
|
(198,686
|
)
|
|||||||
Less: Net income attributable to non-controlling interests
|
(105,532
|
)
|
(38,975
|
)
|
-
|
|||||||
NET LOSS ATTRIBUTABLE TO DRYSHIPS INC.
|
$
|
(47,512
|
)
|
$
|
(
2,847,061
|
)
|
$
|
(198,686
|
)
|
|||
NET LOSS ATTRIBUTABLE TO DRYSHIPS INC. COMMON STOCKHOLDERS
(Note 19)
|
$
|
(48,209
|
)
|
$
|
(
2,847,631
|
)
|
$
|
(206,381
|
)
|
|||
LOSS PER COMMON SHARE ATTRIBUTABLE TO DRYSHIPS INC.
COMMON STOCKHOLDERS, BASIC
AND DILUTED
(Note 19)
|
$
|
(1,268.56
|
)
|
$
|
(51,389.22
|
)
|
$
|
(464.76
|
)
|
|||
WEIGHTED AVERAGE NUMBER OF COMMON SHARES,
BASIC AND DILUTED
(Note 19)
|
38,003
|
55,413
|
444,056
|
Year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
- Net income/(loss)
|
$
|
58,020
|
$
|
(2,808,086
|
)
|
$
|
(198,686
|
)
|
||||
Other comprehensive income/ (loss):
|
||||||||||||
- Reclassification of realized losses associated with capitalized interest to Consolidated Statement of Operations, net
|
550
|
466
|
110
|
|||||||||
- Actuarial gains/(losses)
|
(1,518
|
)
|
50
|
-
|
||||||||
Other comprehensive income/(loss)
|
$
|
(968
|
)
|
$
|
516
|
$
|
110
|
|||||
Comprehensive income/(loss)
|
57,052
|
(
2,807,570
|
)
|
(198,576
|
)
|
|||||||
- Less: comprehensive income attributable to non-controlling interests
|
(105,137
|
)
|
(39,090
|
)
|
-
|
|||||||
Comprehensive loss attributable to DryShips Inc.
|
$
|
(48,085
|
)
|
$
|
(2,846,660
|
)
|
$
|
(198,576
|
)
|
Common Stock
|
Preferred stock
|
Treasury
Stock |
||||||||||||||||||||||||||||||||||||||||||||||
Shares
|
Par
Value
|
Shares
|
Par value
|
Shares
|
Par
Value
|
Additional
Paid-in
Capital
|
Accumulated Other Comprehensive Loss
|
Accumulated Deficit
|
Total
DryShips Stockholders Equity
|
Non-
controlling interests
|
Total
Equity
|
|||||||||||||||||||||||||||||||||||||
BALANCE, January 1, 2014
|
36,055
|
$
|
1
|
—
|
$
|
—
|
(1,750
|
)
|
$
|
—
|
$
|
2,828,817
|
$
|
(6,062
|
)
|
$
|
(209,120
|
)
|
$
|
2,613,636
|
$
|
1,218,062
|
$
|
3,831,698
|
||||||||||||||||||||||||
- Net income/(loss)
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(47,512
|
)
|
(47,512
|
)
|
105,532
|
58,020
|
||||||||||||||||||||||||||||||||||
- Issuance of common stock
|
22,684
|
—
|
—
|
—
|
—
|
—
|
422,375
|
—
|
—
|
422,375
|
—
|
422,375
|
||||||||||||||||||||||||||||||||||||
- Issuance of non-vested shares
|
100
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||||||
- Issuance of treasury stock
|
—
|
—
|
—
|
—
|
(1,258
|
)
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||||||||
- Issuance of subsidiary shares to non-controlling interest
|
—
|
—
|
—
|
—
|
—
|
—
|
(4,758
|
)
|
13
|
—
|
(4,745
|
)
|
3,478
|
(1,267
|
)
|
|||||||||||||||||||||||||||||||||
- Other comprehensive income
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(573
|
)
|
—
|
(573
|
)
|
(395
|
)
|
(968
|
)
|
||||||||||||||||||||||||||||||||
- Amortization of stock based compensation
|
—
|
—
|
—
|
—
|
—
|
—
|
9,640
|
—
|
—
|
9,640
|
1,453
|
11,093
|
||||||||||||||||||||||||||||||||||||
Dividends paid
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(30,563
|
)
|
(30,563
|
)
|
||||||||||||||||||||||||||||||||||
BALANCE December 31, 2014
|
58,839
|
$
|
1
|
—
|
$
|
—
|
(3,008
|
)
|
$
|
—
|
$
|
3,256,074
|
$
|
(6,622
|
)
|
$
|
(256,632
|
)
|
$
|
2,992,821
|
$
|
1,297,567
|
$
|
4,290,388
|
||||||||||||||||||||||||
- Net income/(loss)
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(
2,847,061
|
)
|
(2,847,061
|
)
|
38,975
|
(2,808,086
|
)
|
|||||||||||||||||||||||||||||||||
- Issuance of common stock
|
—
|
—
|
—
|
—
|
—
|
—
|
(228
|
)
|
—
|
—
|
(228
|
)
|
—
|
(228
|
)
|
|||||||||||||||||||||||||||||||||
- Issuance of preferred stock
|
—
|
—
|
8,333
|
—
|
—
|
—
|
10,000
|
—
|
—
|
10,000
|
—
|
10,000
|
||||||||||||||||||||||||||||||||||||
- Issuance of non vested shares
|
175
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||||||
- Conversion of common stock to treasury stock
|
—
|
—
|
—
|
—
|
(1
|
)
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||||||||
- Issuance of subsidiary shares to non-controlling interest
|
—
|
—
|
—
|
—
|
—
|
—
|
(49,444
|
)
|
169
|
—
|
(49,275
|
)
|
50,541
|
1,266
|
||||||||||||||||||||||||||||||||||
- Acquisition of Nautilus Offshore Services Inc.
|
—
|
—
|
—
|
—
|
—
|
—
|
222
|
—
|
(276
|
)
|
(54
|
)
|
54
|
—
|
||||||||||||||||||||||||||||||||||
- Other comprehensive income
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
401
|
—
|
401
|
115
|
516
|
||||||||||||||||||||||||||||||||||||
- Amortization of stock based compensation
|
—
|
—
|
—
|
—
|
—
|
—
|
8,523
|
—
|
—
|
8,523
|
841
|
9,364
|
||||||||||||||||||||||||||||||||||||
-Deconsolidation of Ocean Rig
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
6,285
|
—
|
6,285
|
(1,367,567
|
)
|
(1,361,282
|
)
|
||||||||||||||||||||||||||||||||||
-Dividends paid
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(20,526
|
)
|
(20,526
|
)
|
Common Stock
|
Preferred stock
|
Treasury
Stock |
||||||||||||||||||||||||||||||||||||||||||||||
Shares
|
Par
Value
|
Shares
|
Par
Value
|
Shares
|
Par
Value
|
Additional
Paid-in
Capital
|
Accumulated
Other
Comprehensive
Loss
|
Accumulated Deficit
|
Total
DryShips
Stockholders
Equity
|
Non
controlling
interests
|
Total
equity
|
|||||||||||||||||||||||||||||||||||||
BALANCE December 31, 2015
|
59,014
|
$
|
1
|
8,333
|
$
|
—
|
(3,009
|
)
|
$
|
—
|
$
|
3,225,147
|
$
|
233
|
$
|
(3,103,969
|
)
|
$
|
121,412
|
$
|
—
|
$
|
121,412
|
|||||||||||||||||||||||||
- Net loss
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(198,686
|
)
|
(198,686
|
)
|
—
|
(198,686
|
)
|
|||||||||||||||||||||||||||||||||
- Issuance of common stock (Note 13)
|
433,485
|
4
|
—
|
—
|
—
|
—
|
14,430
|
—
|
—
|
14,434
|
—
|
14,434
|
||||||||||||||||||||||||||||||||||||
- Issuance of preferred stock (Note 13)
|
—
|
—
|
41,688
|
—
|
—
|
—
|
117,981
|
—
|
—
|
117,981
|
—
|
117,981
|
||||||||||||||||||||||||||||||||||||
- Conversion of preferred stock to common stock (Note 13)
|
4,124,643
|
41
|
(12,522
|
)
|
—
|
—
|
—
|
—
|
—
|
—
|
41
|
—
|
41
|
|||||||||||||||||||||||||||||||||||
- Exchange of Revolving Facility with preferred shares (Note 4)
|
—
|
—
|
(8,333
|
)
|
—
|
—
|
—
|
(8,750
|
)
|
—
|
—
|
(8,750
|
)
|
—
|
(8,750
|
)
|
||||||||||||||||||||||||||||||||
-Sale of investment in Ocean Rig (Note 4)
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(343
|
)
|
—
|
(343
|
)
|
—
|
(343
|
)
|
|||||||||||||||||||||||||||||||||
- Other comprehensive income
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
110
|
—
|
110
|
—
|
110
|
||||||||||||||||||||||||||||||||||||
- Amortization of stock based compensation
|
—
|
—
|
—
|
—
|
—
|
—
|
3,770
|
—
|
—
|
3,770
|
—
|
3,770
|
||||||||||||||||||||||||||||||||||||
-Loss from common control transaction
|
—
|
—
|
—
|
—
|
—
|
—
|
(195
|
)
|
—
|
(195
|
)
|
—
|
(195
|
)
|
||||||||||||||||||||||||||||||||||
-Dividends paid
|
—
|
—
|
—
|
—
|
—
|
—
|
7,695
|
—
|
(7,695
|
)
|
—
|
—
|
—
|
|||||||||||||||||||||||||||||||||||
Balance December 31, 2016
|
4,617,142
|
$
|
46
|
29,166
|
$
|
—
|
(3,009
|
)
|
$
|
—
|
$
|
3,360,078
|
$
|
—
|
$
|
(3,310,350
|
)
|
$
|
49,774
|
$
|
—
|
$
|
49,774
|
Year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Cash Flows from Operating Activities:
|
||||||||||||
Net income/(loss)
|
$
|
58,020
|
$
|
(2,808,086
|
)
|
$
|
(198,686
|
)
|
||||
Adjustments to reconcile net income/(loss) to net cash provided by operating activities:
|
||||||||||||
Depreciation and amortization
|
449,792
|
227,652
|
3,466
|
|||||||||
Amortization and write off of deferred financing fees
|
53,063
|
26,712
|
736
|
|||||||||
Amortization of convertible senior notes debt discount
|
45,261
|
-
|
-
|
|||||||||
Amortization of fair value of acquired time charters and drilling contracts
|
7,443
|
2,840
|
4,346
|
|||||||||
Impairment loss and loss from sale of vessels and vessel owning companies
|
38,148
|
1,057,116
|
106,343
|
|||||||||
Impairment on goodwill
|
-
|
-
|
7,002
|
|||||||||
Loss on contract cancellation
|
1,307
|
-
|
-
|
|||||||||
Net proceeds from sale in ownerships of subsidiary
|
-
|
1,266
|
-
|
|||||||||
Equity in net losses of affiliated company
|
-
|
349,872
|
41,454
|
|||||||||
Loss on change of control
|
-
|
1,347,106
|
-
|
|||||||||
Forfeiture of advances for vessel acquisitions
|
13,933
|
-
|
-
|
|||||||||
Amortization of stock based compensation
|
11,093
|
7,806
|
3,580
|
|||||||||
Gain on debt restructuring
|
-
|
-
|
(8,652
|
)
|
||||||||
Change in fair value of derivatives
|
(29,304
|
)
|
(10,848
|
)
|
(2,193
|
)
|
||||||
Changes in operating assets and liabilities:
|
||||||||||||
Trade accounts receivable
|
(82,667
|
)
|
(12,997
|
)
|
2,531
|
|||||||
Due from related parties
|
12,089
|
19,141
|
10,875
|
|||||||||
Other current and non-current assets
|
38,219
|
54,448
|
3,002
|
|||||||||
Accounts payable and other current and non-current liabilities
|
(25,489
|
)
|
(25,263
|
)
|
(1,434
|
)
|
||||||
Accrued liabilities
|
(41,436
|
)
|
(39,590
|
)
|
(206
|
)
|
||||||
Due to related parties
|
819
|
(10,261
|
)
|
2,598
|
||||||||
Deferred revenue
|
(75,183
|
)
|
28,833
|
(118
|
)
|
|||||||
Net Cash Provided by/(Used in) Operating Activities
|
475,108
|
215,747
|
(25,356
|
)
|
||||||||
Cash Flows from Investing Activities:
|
||||||||||||
Investment in affiliates
|
-
|
-
|
49,911
|
|||||||||
Cash decrease due to deconsolidation of Ocean Rig
|
-
|
(621,615
|
)
|
-
|
||||||||
Acquisition of Nautilus, net of cash acquired
|
-
|
(78,203
|
)
|
-
|
||||||||
Short term investments
|
368
|
74
|
-
|
|||||||||
Fixed assets additions
|
(806,561
|
)
|
(505,670
|
)
|
-
|
|||||||
Net proceeds from sale of vessels and vessel owning companies
|
-
|
673,850
|
5,141
|
|||||||||
(Increase)/Decrease in restricted cash
|
51,476
|
65,866
|
14,666
|
|||||||||
Net Cash Provided by/(Used in) Investing Activities
|
(754,717
|
)
|
(465,698
|
)
|
69,718
|
Year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Cash Flows from Financing Activities:
|
||||||||||||
Proceeds from short and long-term credit facilities, term loans and senior notes
|
$
|
2,617,100
|
$
|
492,000
|
$
|
28,000
|
||||||
Principal payments and repayments of long-term debt and senior notes
|
(2,008,826
|
)
|
(782,366
|
)
|
(119,758
|
)
|
||||||
Payments of convertible notes
|
(700,000
|
)
|
-
|
-
|
||||||||
Net proceeds from stock issuance
|
421,911
|
-
|
123,810
|
|||||||||
Dividends paid
|
(30,563
|
)
|
(20,526
|
)
|
-
|
|||||||
Payment of financing costs, net
|
(48,913
|
)
|
(5,399
|
)
|
-
|
|||||||
Net Cash Provided by/(Used in) Financing Activities
|
250,709
|
(316,291
|
)
|
32,052
|
||||||||
Net increase/ (decrease) in cash and cash equivalents
|
(28,900
|
)
|
(566,242
|
)
|
76,414
|
|||||||
Cash and cash equivalents at beginning of year
|
595,142
|
566,242
|
0
|
|||||||||
Cash and cash equivalents at end of year
|
$
|
566,242
|
$
|
0
|
$
|
76,414
|
||||||
SUPPLEMENTAL CASH FLOW INFORMATION:
|
||||||||||||
Cash paid during the year for:
|
||||||||||||
Interest, net of amount capitalized
|
$
|
267,554
|
$
|
135,954
|
$
|
5,516
|
||||||
Income taxes
|
60,374
|
20,830
|
58
|
|||||||||
Non cash financing activities: | ||||||||||||
Repayment of credit loan facilities (Note 4 and 11)
|
$ | - | $ | - | $ | 151,510 | ||||||
Conversion of loan into Preferred Stock (Note 4)
|
- | (10,000 | ) | (8,750 | ) | |||||||
Exchange of Preferred Stock into loan (Note 4)
|
- | - | 8,750 | |||||||||
Interest write off due to the debt restructuring
|
- | - | 2,111 |
1. |
Basis of Presentation and General Information:
|
2. |
Significant Accounting policies:
|
2. |
Significant Accounting policies - continued:
|
2. |
Significant Accounting policies - continued:
|
2. |
Significant Accounting policies - continued:
|
2. |
Significant Accounting policies - continued:
|
(p) |
Fixed assets, net:
|
2. |
Significant Accounting policies - continued:
|
2. |
Significant Accounting policies - continued:
|
2. |
Significant Accounting policies - continued:
|
(w) |
Revenue and related expenses:
|
(i) |
Drybulk carrier, tanker and offshore support vessels:
|
2. |
Significant Accounting policies - continued:
|
(w) |
Revenue and related expenses - continued:
|
(ii) |
Drilling units:
|
2. |
Significant Accounting policies - continued:
|
(i) |
Hedge accounting:
At the inception of a hedge relationship, the Company formally designates and documents the hedge relationship to which the Company wishes to apply hedge accounting and the risk management objective and strategy undertaken for the hedge. The documentation includes identification of the hedging instrument, hedged item or transaction, the nature of the risk being hedged and how the entity will assess the hedging instrument's effectiveness in offsetting exposure to changes in the hedged item's cash flows attributable to the hedged risk. Such hedges are expected to be highly effective in achieving offsetting changes in cash flows and are assessed on an ongoing basis to determine whether they actually have been highly effective throughout the financial reporting periods for which they were designated.
|
2. |
Significant Accounting policies - continued:
|
(z) |
Financial instruments - continued:
|
(ii) |
Other derivatives:
Changes in the fair value of derivative instruments that have not been designated as hedging instruments are reported in current period earnings.
|
2. |
Significant Accounting policies - continued:
|
(i) |
Ocean Rig and its subsidiaries (ownership interest as of April 4, 2016, was 40.4%).
|
(ah) |
Recent accounting pronouncements:
|
2. |
Significant Accounting policies - continued:
|
(ah) |
Recent accounting pronouncements:
|
2. |
Significant Accounting policies - continued:
|
(ah) |
Recent accounting pronouncements:
|
3. |
Going Concern
|
4. |
Transactions with Related Parties:
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Balance Sheet
|
||||||||
Due from related parties
|
$
|
20,637
|
$
|
6,674
|
||||
Due from related parties (current) - Total
|
20,637
|
6,674
|
||||||
Due to related parties
|
(21,828)
|
(5,033)
|
||||||
Due to related parties (current) - Total
|
$
|
(21,828)
|
$
|
(5,033)
|
||||
Due to related parties
|
-
|
(116,617)
|
||||||
Due to related parties (non - current) - Total
|
$
|
-
|
$
|
(116,617)
|
||||
Accrued liabilities
|
$
|
(1,059)
|
$
|
(1,082)
|
Year ended December 31,
|
||||||||||||
Statement of Operations
|
2014
|
2015
|
2016
|
|||||||||
Time charter & Service Revenues – commission fees
|
$
|
16,870
|
$
|
7,366
|
$
|
1,800
|
||||||
Voyage expenses
|
(6,758
|
)
|
(4,521
|
)
|
(390
|
)
|
||||||
General and administrative expenses
|
(85,584
|
)
|
(50,498
|
)
|
(32,397
|
)
|
||||||
Commissions for assets sold
|
-
|
(8,133
|
)
|
(886
|
)
|
|||||||
Gain/(loss) from sale of vessel owning companies, net of commissions
|
-
|
-
|
(22,318
|
)
|
||||||||
Interest and finance costs
|
-
|
(3,679
|
)
|
(1,789
|
)
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
4. |
Transactions with Related Parties - continued:
|
5. |
Other Current assets
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Inventories
|
$
|
3,531
|
$
|
3,446
|
||||
Insurance claims (Note 15)
|
941
|
1,071
|
||||||
Other
|
542
|
29
|
||||||
Other current assets
|
$
|
5,014
|
$
|
4,546
|
6. |
Advances for Vessels and Drilling Units under Construction and Acquisitions:
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Balance at beginning of year
|
$
|
623,984
|
$
|
-
|
||||
Advances for drilling units under construction and related costs
|
465,650
|
-
|
||||||
Drilling units delivered
|
(728,393
|
)
|
-
|
|||||
Deconsolidation of Ocean Rig
|
(361,241
|
)
|
-
|
|||||
Balance at end of year
|
$
|
-
|
$
|
-
|
7. |
Vessels, Drilling Units, Machinery and Equipment:
|
Cost
|
Accumulated
Depreciation
|
Net Book
Value
|
||||||||||
Balance, December 31, 2014
|
$
|
2,873,951
|
(732,334
|
)
|
2,141,617
|
|||||||
Acquisition of subsidiary
|
97,100
|
-
|
97,100
|
|||||||||
Vessels transfer to held for sale
|
(208,099
|
)
|
-
|
(208,099
|
)
|
|||||||
Vessels disposals
|
(810,810
|
)
|
-
|
(810,810
|
)
|
|||||||
Impairment loss
|
(1,855,042
|
)
|
803,962
|
(1,051,080
|
)
|
|||||||
Depreciation
|
-
|
(72,300
|
)
|
(72,300
|
)
|
|||||||
Balance, December 31, 2015
|
$
|
97,100
|
(672
|
)
|
$
|
96,428
|
||||||
Vessels transferred from held for sale
|
66,449
|
-
|
66,449
|
|||||||||
Impairment loss
|
(67,999
|
)
|
4,138
|
(63,861
|
)
|
|||||||
Depreciation
|
-
|
(3,466
|
)
|
(3,466
|
)
|
|||||||
Balance, December 31, 2016
|
$
|
95,550
|
$
|
-
|
$
|
95,550
|
7. |
Vessels, Drilling Units, Machinery and Equipment - continued:
|
7. |
Vessels, Drilling Units, Machinery and Equipment - continued:
|
7. |
Vessels, Drilling Units, Machinery and Equipment - continued:
|
Total assets
|
December 31,
|
|||||||
2015
|
2016
|
|||||||
Cash and cash equivalents
|
$
|
12
|
$
|
-
|
||||
Restricted cash
|
4,920
|
-
|
||||||
Accounts receivable trade, net
|
7
|
-
|
||||||
Due from related parties – TMS Bulkers Ltd. (Note 4)
|
2,492
|
-
|
||||||
Inventories
|
384
|
-
|
||||||
Prepayments and advances
|
15
|
-
|
||||||
Insurance claims
|
97
|
-
|
||||||
Vessels held for sale
|
208,099
|
-
|
||||||
Total assets held for sale
|
$
|
216,026
|
$
|
-
|
Total liabilities
|
December 31,
|
|||||||
2015
|
2016
|
|||||||
Bank debt
|
$
|
103,680
|
$
|
-
|
||||
Accounts payable
|
1
|
-
|
||||||
Accrued liabilities
|
271
|
-
|
||||||
Deferred revenues
|
414
|
-
|
||||||
Total liabilities held for sale
|
$
|
104,366
|
$
|
-
|
7. |
Vessels, Drilling Units, Machinery and Equipment - continued:
|
Cost
|
Accumulated
Depreciation
|
Net Book
Value
|
||||||||||
Balance, December 31, 2014
|
$
|
7,393,173
|
$
|
(1,133,426
|
)
|
$
|
6,259,747
|
|||||
Additions
|
806,353
|
-
|
806,353
|
|||||||||
Depreciation
|
-
|
(154,481
|
)
|
(154,481
|
)
|
|||||||
Deconsolidation of Ocean Rig
|
(8,199,526
|
)
|
1,287,907
|
(6,911,619
|
)
|
|||||||
Balance, December 31, 2015
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||
Additions
|
-
|
-
|
-
|
|||||||||
Depreciation
|
-
|
-
|
-
|
|||||||||
Balance December 31, 2016
|
$
|
-
|
$
|
-
|
$
|
-
|
8. |
Acquisition of Nautilus Offshore Services Inc.:
|
8. |
Acquisition of Nautilus Offshore Services Inc. - continued:
|
Assets:
|
||||
Current assets
|
$
|
22,609
|
||
Vessels
|
97,100
|
|||
Goodwill
|
7,002
|
|||
Above-market acquired time charters
|
12,474
|
|||
Other non-current assets
|
5,562
|
|||
Total assets acquired
|
144,747
|
|||
Liabilities:
|
||||
Total current liabilities
|
12,691
|
|||
Total non-current liabilities
|
39,988
|
|||
Total liabilities assumed
|
52,679
|
|||
Fair value of non – controlling interests
|
1,500
|
|||
Net assets acquired
|
$
|
90,568
|
||
Consideration paid
|
87,000
|
|||
Working capital adjustment
|
3,568
|
|||
Total consideration
|
90,568
|
8. |
Acquisition of Nautilus Offshore Services Inc. - continued:
|
Amortization Schedule
|
||||||||||||||||
Amount
Acquired |
Balance
as of December 31, 2015 |
Amortization and write offs for the year ended
December 31, 2016 |
Amortization for the year ending
December 31, 2017 |
|||||||||||||
Above-market acquired time charters
|
$
|
12,474
|
$
|
11,007
|
$
|
9,507
|
$
|
1,500
|
December 31,
|
||||||||
2014
|
2015
|
|||||||
Pro forma revenues
|
$
|
2,233,015
|
$
|
1,011,674
|
||||
Pro forma operating income/(loss)
|
554,870
|
(866,317
|
)
|
|||||
Pro forma net loss
|
(38,874
|
)
|
(2,838,322
|
)
|
||||
Pro forma per share amounts:
|
||||||||
Basic net loss per share
|
$
|
(127.87
|
)
|
$
|
(6,402.62
|
)
|
8. |
Acquisition of Nautilus Offshore Services Inc. - continued:
|
Balance December 31, 2015
|
$
|
7,002
|
||
Goodwill impairment charge
|
(7,002
|
)
|
||
Balance December 31, 2016
|
$
|
—
|
9. |
Other non-current assets:
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Security deposits for derivatives
|
$
|
727
|
$
|
-
|
||||
$
|
727
|
$
|
-
|
10. |
Investment in an Affiliate:
|
10. |
Investment in an Affiliate - continued:
|
11. |
Long-term Debt:
|
December 31,
|
||||||||
2015
|
2016
|
|||||||
Secured Credit Facilities- Drybulk Segment
|
$
|
218,185
|
$
|
16,935
|
||||
Less: Deferred financing costs
|
(636
|
)
|
(124
|
)
|
||||
Total debt
|
217,549
|
16,811
|
||||||
Less: Current portion
|
(217,549
|
)
|
(16,811
|
)
|
||||
Long-term portion
|
$
|
-
|
$
|
-
|
11. |
Long-term Debt - continued:
|
Loan
|
Loan agreement date
|
Original Amount
|
December 31, 2015
|
New Loans/Interest capitalized
|
Repayments/Transfers/Write offs
|
December 31, 2016
|
|||||||||||||||
Secured Credit Facility
|
October 5, 2007
|
$
|
90,000
|
$
|
43,700
|
—
|
(43,700
|
)
|
$
|
—
|
|||||||||||
Secured Credit Facility
|
June 20, 2008
|
103,200
|
18,250
|
316
|
(16,566
|
)
|
2,000
|
||||||||||||||
Secured Credit Facility
|
November 16, 2007
|
47,000
|
12,500
|
—
|
(12,500
|
)
|
—
|
||||||||||||||
Secured Credit Facility
|
March 13, 2008
|
130,000
|
27,567
|
—
|
(27,567
|
)
|
—
|
||||||||||||||
Secured Credit Facility
|
March 31, 2006
|
753,637
|
101,572
|
—
|
(101,572
|
)
|
—
|
||||||||||||||
Secured Credit Facility
|
March 19, 2012
|
19,065
|
14,596
|
438
|
(99
|
)
|
14,935
|
||||||||||||||
$
|
218,185
|
754
|
(202,004
|
)
|
$
|
16,935
|
11. |
Long-term Debt - continued:
|
2017
|
$
|
16,935
|
||
Total principal payments
|
16,935
|
|||
Less: Financing fees
|
(124
|
)
|
||
Total debt
|
$
|
16,811
|
12. |
Financial Instruments and Fair Value Measurements:
|
12. |
Financial Instruments and Fair Value Measurements - continued:
|
Asset Derivatives
|
|
Liability Derivatives
|
||||||||||||||||
Derivatives not designated as hedging
instruments
|
Balance Sheet
Location
|
December 31,
2015
Fair value
|
December 31,
2016
Fair value
|
Balance Sheet
Location
|
December 31,
2015
Fair value
|
December 31,
2016
Fair value
|
||||||||||||
Interest rate swaps
|
Financial instruments-current assets
|
$
|
-
|
$
|
-
|
Financial instruments- current liabilities
|
$
|
2,604
|
$
|
-
|
||||||||
Interest rate swaps
|
Financial instruments- non-current assets
|
411
|
-
|
Financial instruments- non-current liabilities
|
-
|
-
|
||||||||||||
|
||||||||||||||||||
Total derivatives not designated as hedging instruments
|
$
|
411
|
$
|
-
|
|
$
|
2,604
|
$
|
-
|
|||||||||
|
||||||||||||||||||
Total derivatives
|
$
|
411
|
$
|
-
|
Total derivatives
|
$
|
2,604
|
$
|
-
|
Amount of Gain/(Loss)
|
|||||||||||||
Derivatives not designated as hedging instruments
|
Location of Gain or (Loss) Recognized
|
Year Ended
December 31,
2014
|
Year Ended
December 31,
2015
|
Year Ended
December 31,
2016
|
|||||||||
Interest rate swaps
|
Gain/(Loss) on interest rate swaps
|
$
|
(15,528
|
)
|
$
|
(11,601
|
)
|
$
|
403
|
||||
Total
|
$
|
(15,528
|
)
|
$
|
(11,601
|
)
|
$
|
403
|
12. |
Financial Instruments and Fair Value Measurements - continued:
|
December 31,
2015
|
Quoted Prices
in Active
Markets for
Identical
Assets/
Liabilities
(Level 1)
|
Significant Other
Observable
Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
|||||||||||||
Recurring measurements:
|
||||||||||||||||
Interest rate swaps - asset position
|
$
|
411
|
$
|
-
|
$
|
411
|
$
|
-
|
||||||||
Interest rate swaps - liability position
|
$
|
(2,604
|
)
|
$
|
-
|
$
|
(2,604
|
)
|
$
|
-
|
||||||
Total
|
$
|
(2,193
|
)
|
$
|
-
|
$
|
(2,193
|
)
|
$
|
-
|
December 31,
2016
|
Quoted Prices
in Active
Markets for
Identical
Assets/
Liabilities
(Level 1)
|
Significant Other
Observable
Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
|||||||||||||
Recurring measurements:
|
||||||||||||||||
Interest rate swaps - asset position
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||||
Interest rate swaps - liability position
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||||
Total
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
12. |
Financial Instruments and Fair Value Measurements - continued:
|
Quoted Prices
in Active
Markets for
Identical
Assets/
Liabilities
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
||||||||||
Non-Recurring measurements:
|
||||||||||||
Investment in affiliate (Note 10)
|
$
|
514,047
|
$
|
-
|
$
|
-
|
||||||
Vessels held for sale
|
-
|
208,099
|
-
|
|||||||||
Total
|
$
|
514,047
|
$
|
208,099
|
$
|
-
|
||||||
12. |
Financial Instruments and Fair Value Measurements - continued:
|
Quoted Prices
in Active
Markets for
Identical
Assets/
Liabilities
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Unobservable
Inputs
(Level 3)
|
||||||||||
Non-Recurring measurements:
|
||||||||||||
Long-lived assets held and used
|
$
|
-
|
$
|
95,550
|
$
|
-
|
||||||
Total
|
$
|
-
|
$
|
95,550
|
$
|
-
|
13. |
Common Stock and Additional Paid-in Capital:
|
Year Ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Net loss attributable to Dryships Inc.
|
$
|
(47,512
|
)
|
$
|
(2,847,061
|
)
|
$
|
(198,686
|
)
|
|||
Transfers to the non-controlling interest:
|
||||||||||||
Decrease in Dryships Inc. equity for reduction in subsidiary ownership
|
(4,758
|
)
|
(49,444
|
)
|
-
|
|||||||
Net transfers to the non-controlling interest
|
(4,758
|
)
|
(49,444
|
)
|
-
|
|||||||
Net loss attributable to Dryships Inc. and transfers to/from the non-controlling interest
|
$
|
(52,270
|
)
|
$
|
(2,896,505
|
)
|
$
|
(198,686
|
)
|
13. |
Common Stock and Additional Paid-in Capital – continued:
|
13. |
Common Stock and Additional Paid-in Capital – continued:
|
14. |
Equity incentive plan:
|
14. |
Equity incentive plan – continued:
|
14. |
Equity incentive plan – continued:
|
Number of
non vested shares
|
Weighted average grant
date fair value per
non vested shares
|
|||||||
Balance December 31, 2013
|
472
|
$
|
61,080
|
|||||
Granted
|
275
|
22,440
|
||||||
Vested
|
(144
|
)
|
51,720
|
|||||
Balance December 31, 2014
|
603
|
$
|
45,720
|
|||||
Vested
|
(203
|
)
|
40,560
|
|||||
Balance December 31, 2015
|
400
|
$
|
48,240
|
|||||
Vested
|
(175
|
)
|
43,160
|
|||||
Balance December 31, 2016
|
225
|
$
|
52,232.56
|
Number of
vested shares
|
Weighted average grant
date fair value per
vested shares
|
|||||||
As at December 31, 2013
|
828
|
$
|
151,920
|
|||||
Granted and vested
|
33
|
39,120
|
||||||
Non vested shares granted in prior years and vested 2014
|
111
|
55,560
|
||||||
As at December 31, 2014
|
972
|
$
|
137,040
|
|||||
Non vested shares granted in prior years and vested 2015
|
203
|
40,560
|
||||||
As at December 31, 2015
|
1,175
|
$
|
120,360
|
|||||
Non vested shares granted in prior years and vested 2016
|
175
|
43,160
|
||||||
As at December 31, 2016
|
1,350
|
$
|
110,354
|
15. |
Commitment and contingencies:
|
15.1 |
Legal proceedings
|
15.2 |
Contractual charter revenue
|
15. |
Commitment and contingencies - continued:
|
15.2 |
Contractual charter revenue – continued:
|
16. |
Accumulated other comprehensive income:
|
Year ended December 31,
|
||||||||||||||||||||||||
2015
|
2016
|
|||||||||||||||||||||||
Attributable
to Dryships
|
Attributable
to non
controlling
interest
|
Total
|
Attributable
to Dryships
|
Attributable
to non
controlling
interest
|
Total
|
|||||||||||||||||||
Cash flows hedges realized gain
|
$
|
225
|
$
|
-
|
$
|
225
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||||||||
Actuarial pension gain
|
8
|
-
|
8
|
-
|
-
|
-
|
||||||||||||||||||
Total
|
$
|
233
|
$
|
-
|
$
|
233
|
$
|
-
|
$
|
-
|
$
|
-
|
17. |
Interest and Finance Costs:
|
Year ended December 31,
|
||||||||||||
2014
|
2015
|
2016
|
||||||||||
Interest incurred on long-term debt
|
$
|
317,445
|
$
|
150,061
|
$
|
6,164
|
||||||
Interest, amortization and write off of financing fees on loan from affiliate and related party
|
-
|
3,642
|
1,563
|
|||||||||
Amortization and write-off of financing fees
|
50,551
|
23,834
|
572
|
|||||||||
Discount on receivable from drilling contract
|
-
|
4,048
|
-
|
|||||||||
Amortization of convertible notes discount
|
45,261
|
-
|
-
|
|||||||||
Amortization of share lending agreement-note issuance costs
|
2,733
|
-
|
-
|
|||||||||
Commissions, commitment fees and other financial expenses and related party
|
34,256
|
2,607
|
558
|
|||||||||
Capitalized interest
|
(39,225
|
)
|
(12,060
|
)
|
-
|
|||||||
Total
|
$
|
411,021
|
$
|
172,132
|
$
|
8,857
|
18. |
Segment information:
|
Drybulk Segment
|
Offshore Support Segment
|
Drilling Segment
|
Tanker Segment
|
TOTAL
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
2014
|
2015
|
2016
|
2014
|
2015
|
2016
|
2014
|
2015
|
2016
|
2014
|
2015
|
2016
|
2014
|
2015
|
2016
|
||||||||||||||||||||||||||||||||||||||||||||||
Revenues
|
$
|
205,630
|
$
|
115,598
|
$
|
30,777
|
$
|
-
|
$
|
8,118
|
$
|
21,157
|
$
|
1,817,077
|
$
|
725,805
|
$
|
-
|
$
|
162,817
|
$
|
120,304
|
$
|
-
|
$
|
2,185,524
|
$
|
969,825
|
$
|
51,934
|
||||||||||||||||||||||||||||||
Vessels and drilling units operating expenses
|
90,376
|
87,704
|
30,969
|
-
|
3,977
|
14,587
|
727,832
|
259,623
|
-
|
26,052
|
19,770
|
7
|
844,260
|
371,074
|
45,563
|
|||||||||||||||||||||||||||||||||||||||||||||
Depreciation and amortization
|
99,631
|
65,607
|
-
|
-
|
672
|
3,466
|
325,744
|
155,352
|
-
|
24,417
|
6,021
|
449,792
|
227,652
|
3,466
|
||||||||||||||||||||||||||||||||||||||||||||||
Goodwill impairment
|
-
|
-
|
-
|
-
|
-
|
7,002
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
7,002
|
|||||||||||||||||||||||||||||||||||||||||||||
Loss on contract cancellation
|
1,307
|
28,241
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
-
|
1,307
|
28,241
|
-
|
|||||||||||||||||||||||||||||||||||||||||||||
Impairment loss, gain/loss from sale of vessels and vessel owning companies and other
|
38,148
|
1,000,485
|
35,470
|
-
|
-
|
70,873
|
-
|
-
|
-
|
-
|
56,631
|
-
|
38,148
|
1,057,116
|
106,343
|
|||||||||||||||||||||||||||||||||||||||||||||
General and administrative expenses
|
48,441
|
44,519
|
29,822
|
-
|
2,858
|
9,849
|
131,745
|
46,989
|
-
|
13,500
|
10,546
|
37
|
193,686
|
104,912
|
39,708
|
|||||||||||||||||||||||||||||||||||||||||||||
Gain/(loss) on interest rate swaps
|
(1,142
|
)
|
(567
|
)
|
917
|
-
|
-
|
-
|
(12,671
|
)
|
(9,588
|
)
|
-
|
(1,715
|
)
|
(1,446
|
)
|
(514
|
)
|
(15,528
|
)
|
(11,601
|
)
|
403
|
||||||||||||||||||||||||||||||||||||
Gain on debt restructuring
|
-
|
-
|
10,477
|
-
|
-
|
-
|
-
|
-
|
--
|
-
|
-
|
-
|
-
|
-
|
10,477
|
Income taxes
|
-
|
-
|
-
|
-
|
(188
|
)
|
(38
|
)
|
(77,823
|
)
|
(36,931
|
)
|
-
|
-
|
-
|
-
|
(77,823
|
)
|
(37,119
|
)
|
(38
|
)
|
||||||||||||||||||||||||||||||||||||||
Net income/(loss)
|
(206,303
|
)
|
(1,180,056
|
)
|
(69,966
|
)
|
-
|
(2,711
|
)
|
(86,553
|
)
|
259,654
|
(1,601,451
|
)
|
(41,454
|
)
|
4,669
|
(23,868
|
)
|
(713
|
)
|
58,020
|
(2,808,086
|
)
|
(198,686
|
)
|
||||||||||||||||||||||||||||||||||
Net income/(loss) attributable to Dryships Inc.
|
(206,303
|
)
|
(1,180,056
|
)
|
(69,966
|
)
|
-
|
(2,657
|
)
|
(86,553
|
)
|
154,122
|
(1,640,480
|
)
|
(41,454
|
)
|
4,669
|
(23,868
|
)
|
(713
|
)
|
(47,512
|
)
|
(2,847,061
|
)
|
(198,686
|
)
|
|||||||||||||||||||||||||||||||||
Interest and finance cost
|
(102,806
|
)
|
(45,321
|
)
|
(8,706
|
)
|
-
|
(105
|
)
|
(93
|
)
|
(298,839
|
)
|
(123,463
|
)
|
-
|
(10,540
|
)
|
(8,766
|
)
|
(58
|
)
|
(412,185
|
)
|
(177,655
|
)
|
(8,857
|
)
|
||||||||||||||||||||||||||||||||
Interest income
|
1,074
|
76
|
66
|
-
|
2
|
13
|
12,227
|
5,954
|
-
|
9
|
18
|
2
|
13,310
|
6,050
|
81
|
|||||||||||||||||||||||||||||||||||||||||||||
Change in fair value of derivatives (gain)/loss
|
(21,069
|
)
|
(10,768
|
)
|
(1,957
|
)
|
-
|
(6
|
)
|
-
|
(15,909
|
)
|
349
|
-
|
7,674
|
(422
|
)
|
(236
|
)
|
(29,304
|
)
|
(10,848
|
)
|
(2,193
|
)
|
|||||||||||||||||||||||||||||||||||
Total assets
|
$
|
1,731,295
|
$
|
342,287
|
$
|
162,532
|
$
|
-
|
$
|
131,124
|
$
|
31,191
|
$
|
8,095,212
|
$
|
-
|
$
|
-
|
$
|
650,082
|
$
|
2,641
|
$
|
7
|
$
|
10,476,589
|
$
|
476,052
|
$
|
193,730
|
December 31,
2014
|
December 31,
2015
|
December 31,
2016
|
||||||||||
Interest and finance costs
|
||||||||||||
Interest for reportable segments
|
412,185
|
177,655
|
8,857
|
|||||||||
Elimination of intersegment interest
|
(1,164
|
)
|
(5,523
|
)
|
-
|
|||||||
Total consolidated Interest and finance costs
|
$
|
411,021
|
$
|
172,132
|
$
|
8,857
|
Interest income
|
||||||||||||
Interest for reportable segments
|
13,310
|
6,050
|
81
|
|||||||||
Elimination of intersegment interest
|
(1,164
|
)
|
(5,523
|
)
|
-
|
|||||||
Total consolidated Interest income
|
12,146
|
527
|
81
|
|||||||||
Total Assets
|
||||||||||||
Total Assets for reportable segments
|
10,476,589
|
476,052
|
193,730
|
|||||||||
Elimination of intersegment receivables
|
(117,219
|
)
|
-
|
-
|
||||||||
Total consolidated Assets
|
10,359,370
|
476,052
|
193,730
|
18. |
Segment information - continued:
|
For the years ended December 31,
|
||||||||||||
Country
|
2014
|
2015
|
2016
|
|||||||||
Congo
|
$
|
-
|
$
|
31,807
|
$
|
-
|
||||||
Norway
|
220,044
|
101,584
|
-
|
|||||||||
Brazil
|
581,635
|
253,283
|
-
|
|||||||||
Ivory Coast
|
97,232
|
12,065
|
-
|
|||||||||
Angola
|
807,742
|
275,410
|
-
|
|||||||||
Falkland
|
-
|
51,656
|
-
|
|||||||||
Gabon/ West Africa
|
110,424
|
-
|
-
|
|||||||||
Total leasing and service revenues
|
$
|
1,817,077
|
$
|
725,805
|
$
|
-
|
For the years ended December 31,
|
||||||||||||
Country | 2014 | 2015 | 2016 | |||||||||
Brazil
|
-
|
8,118
|
19,312
|
|||||||||
Europe
|
-
|
-
|
1,800
|
|||||||||
Total revenues
|
$
|
-
|
$
|
8,118
|
$
|
21,112
|
19. |
Losses per share:
|
For the years ended December 31,
|
||||||||||||||||||||||||||||||||||||
2014
|
2015
|
2016
|
||||||||||||||||||||||||||||||||||
Loss
(numerator)
|
Weighted-
average
number of
outstanding
shares
(denominator)
|
Amount
per share
|
Loss
(numerator)
|
Weighted-
average
number of
outstanding
share
(denominator)
|
Amount
per share
|
Loss
(numerator)
|
Weighted-
average
number of
outstanding
shares
(denominator)
|
Amount
per share
|
||||||||||||||||||||||||||||
Net loss attributable to DryShips Inc.
|
$
|
(47,512
|
)
|
-
|
$
|
-
|
$
|
(2,847,061
|
)
|
-
|
$
|
-
|
$
|
(198,686
|
)
|
-
|
$
|
-
|
||||||||||||||||||
-Less: Convertible Preferred stock dividends
|
(7,695
|
)
|
||||||||||||||||||||||||||||||||||
-Less: Non-vested common stock dividends declared and undistributed earnings
|
(697
|
)
|
-
|
-
|
(570
|
)
|
-
|
-
|
-
|
-
|
-
|
|||||||||||||||||||||||||
Basic LPS
|
||||||||||||||||||||||||||||||||||||
Loss available to common stockholders
|
$
|
(48,209
|
)
|
38,003
|
$
|
(1,268.56
|
)
|
$
|
(2,847,631
|
)
|
55,413
|
$
|
(51,389.22
|
)
|
$
|
(206,381
|
)
|
444,056
|
$
|
(464.76
|
)
|
|||||||||||||||
Dilutive effect of securities
|
||||||||||||||||||||||||||||||||||||
Diluted LPS
|
||||||||||||||||||||||||||||||||||||
Loss available to common stockholders
|
$
|
(48,209
|
)
|
38,003
|
$
|
(1,268.56
|
)
|
$
|
(2,847,631
|
)
|
55,413
|
$
|
(51,389.22
|
)
|
$
|
(206,381
|
)
|
444,056
|
$
|
(464.76
|
)
|
19. |
Losses per share - continued:
|
20. |
Income Taxes:
|
20.1 |
Drybulk, Offshore Support and Tanker Segments
|
20. |
Income Taxes – continued:
|
20.2 |
Drilling Segment (up to June 8, 2015 – date of deconsolidation):
|
Year ended December 31,
|
||||||||
2014
|
2015
|
|||||||
Domestic income / (loss) (Republic of the Marshall Islands)
|
$
|
(161,913
|
)
|
$
|
90,181
|
|||
Foreign income
|
499,539
|
42,277
|
||||||
Total income before taxes
|
$
|
337,626
|
$
|
132,458
|
Year ended December 31,
|
||||||||
2014
|
2015
|
|||||||
Current Tax expense
|
$
|
77,823
|
$
|
37,119
|
||||
Income taxes
|
$
|
77,823
|
$
|
37,119
|
||||
Effective tax rate
|
23.1
|
%
|
28.0
|
%
|
Year Ended December 31,
|
||||||||
Reconciliation of total tax expense:
|
2014
|
2015
|
||||||
Income tax
|
$
|
70,441
|
$
|
37,119
|
||||
Taxes on litigation matters subject to statutory rates, including interest and penalties
|
7,382
|
-
|
||||||
Total
|
$
|
77,823
|
$
|
37,119
|
20. |
Income Taxes – continued:
|
20.2 |
Drilling Segment (up to June 8, 2015 – date of deconsolidation) - continued:
|
Year ended December 31,
|
||||
2015
|
||||
Deferred tax assets
|
||||
Net operations loss carry forward
|
$
|
-
|
||
Accelerated depreciation of assets
|
55
|
|||
Pension
|
904
|
|||
Total deferred tax assets
|
$
|
959
|
||
Less: valuation allowance
|
(959
|
)
|
||
Total deferred tax assets, net
|
$
|
-
|
21.1 |
On January 12, 2017, the Company entered into a "zero cost" Option Agreement ("the LPG Option Agreement"), with companies controlled by Mr. George Economou, the Company's Chairman and Chief Executive Officer, to purchase up to four high specifications Very Large Gas Carriers ("VLGCs") capable of carrying liquefied petroleum gas ("LPG") that are currently under construction at Hyundai Samho Heavy Industries Co., Ltd., ("HHI"). Each of the four VLGCs is going to be employed on long term charters to major oil companies and oil traders. Under the terms of the LPG Option Agreement, the Company has until April 4, 2017 to exercise four separate options to purchase up to the four VLGCs at a price of $83,500 per vessel. The transaction was approved by the independent directors of the Company's board of directors based on third party broker valuations.
|
21.2 |
On January 18, 2017, the Company's Board of Directors has determined to effect a 1-for-8 reverse stock split of the Company's common shares. At the Company's annual general meeting of shareholders on October 26, 2016, the Company's shareholders approved the reverse stock split and granted the Board of Directors, or a duly constituted committee thereof, the authority to determine the exact split ratio and proceed with the reverse stock split. The reverse stock split occurred, and the Company's common stock began trading on a split adjusted basis on the Nasdaq Capital Market, as of the opening of trading on January 23, 2017 under the existing trading symbol "DRYS".
|
21. |
Subsequent Events - continued:
|
21.3 |
On January 19, 2017, the Company acquired one Very Large Gas Carrier ("VLGC") currently under construction at HHI for a purchase price of $83,500. The Company financed the closing price of $21,850 by using part of the undrawn liquidity under the New Revolving Facility, consequently increasing the outstanding balance of the New Revolving Facility to $142,850. The $61,650 balance of the purchase price for the VLGC is payable in installments until the vessel's delivery from HHI. The VLGC is expected to be employed on a fixed rate five-year time charter with an oil major. The charterer has options to extend the firm employment period by up to three years. The Company expects to take delivery of the vessel in June 2017.
|
21.4 |
On January 30, 2017, the Company has successfully completed the previously announced $200,000 common stock offering, in which the Company raised net proceeds of $198,000, pursuant to the Common Stock Purchase Agreement entered into on December 23, 2016. The Common Stock Purchase Agreement was then automatically terminated in accordance with its terms. The Company issued 32,028,079 shares of common stock (as adjusted for the 1-for-8 reverse stock split), including shares issued as commitment fee, to the Investor at an average price of approximately $6.30 per share.
|
21.5 |
On February 10, 2017 the Company entered into an agreement with an unaffiliated third party to acquire one 113,644 DWT Aframax tanker currently under construction in South Korea. The Company expects to take delivery of this vessel sometime in the second quarter of 2017. The vessel is expected to be employed in the spot market. Also, on February 14, 2017, the Company entered into an agreement with an unaffiliated third party to acquire one 320,105 DWT Very Large Crude Carrier built in 2011. The Company expects to take delivery of this vessel sometime in the second quarter of 2017. The vessel is expected to be employed in the spot market. The total gross price for the two vessels will be about $102,515.
|
21.6 |
On February 16, 2017, the Company made the first scheduled installment of $667 according to the agreement concluded on November 18, 2016, under its loan agreement dated June 20, 2008.
|
21.7 |
On February 17, 2017 the Company entered into an agreement with Kalani, under which it may sell up to $200,000 of its common stock to Kalani over a period of 24 months, subject to certain limitations. Proceeds from any sales of common stock will be used for general corporate purposes. Kalani has no right to require any sales and is obligated to purchase the common stock as directed by the Company, subject to certain limitations set forth in the agreement. In consideration for entering into the agreement, the Company has agreed to issue up to $1,500 of its common stock to Kalani as a commitment fee. No warrants, derivatives, or other share classes are associated with this agreement. As of March 10, 2017, the Company has sold an aggregate of 103,867,307 shares to the Investor under the Purchase Agreement dated February 17, 2017 for a gross price of $182,094.
|
21.8 |
On February 27, 2017, the Company announced that its Board of Directors has decided to initiate a new dividend policy. Under this policy, the Company will pay a regular fixed quarterly dividend of $2,500 to the holders of common stock. In addition, at its discretion, the Board may decide to pay additional amounts as dividend each quarter depending on market conditions and the Company's financial performance, over and above the fixed amount. With respect to the quarter ended December 31, 2016, the Board of Directors declared a dividend of $2,500 to the common shareholders of record as of March 15, 2017 and payable on or about March 31, 2017. The dividend per share amount to be paid by the Company will be determined based on the number of shares outstanding on the record date.
|
21.9 |
On March 10, 2017, the Company acquired one VLGC currently under construction at HHI for a purchase price of $83,500. The Company financed the closing price of $21,850 by using part of the undrawn liquidity under the New Revolving Facility, consequently increasing the outstanding balance of the New Revolving Facility to $164,700. The $61,650 balance of the purchase price for the VLGC is payable in installments until the vessel's delivery from HHI. The VLGC is expected to be employed on a fixed rate five-year time charter with an oil major. The charterer has options to extend the firm employment period by up to three years. The Company expects to take delivery of the vessel in September 2017.
|
By:
|
/s/ Anthony Kandylidis
|
|
Name:
|
Anthony Kandylidis
|
|
Title:
|
Executive Vice President and Interim Chief Financial Officer
|
|
DRYSHIPS INC.
, as Borrower
By:
/s/ Ziad Nakhleh
Name: Ziad Nakhleh Title: Chief Financial Officer |
|
SIFNOS SHAREHOLDERS INC.
, as Lender
By:
/s/ Savvas Tournis
Name: Savvas Tournis Title: Attorney-in-fact |
COMPANY
:
DRYSHIPS INC.
By:
/s/ Ziad Nakhleh
Name: Ziad Nakhleh Title: Chief Financial Officer |
|
SELLER
:
SIFNOS SHAREHOLDERS INC.
By:
/s/ Savvas Tournis
Name: Savvas Tournis Title: Attorney-in-fact |
1. |
The maximum amount of the Commitment is to increase by $10 million to $70 million from $60 million.
|
2. |
The Borrower has the option to extend the maturity of the facility by 12 months from October 21, 2018 to October 21, 2019.
|
3. |
The Lender will no longer have the conversion right under Section 8.01 of the existing Facility Agreement and such Section 8.01 will be deleted in its entirety.
|
4. |
Subject to the prior written consent of the Lender, the Borrower has the right to convert $8,750,000 of the outstanding balance of the Loans into 3,500,000 preferred shares of the Borrower which have a voting power of 5:1 (vis-à-vis the common) and which mandatorily convert into common on a 1:1 basis within 3 months after conversion.
|
MEMORANDUM OF AGREEMENT
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO 1956.
Code-name
SALEFORM 2012
Revised 1966, 1983 and 1986/87, 1993 and 2012
|
Year of Build:
|
2012
|
Builder/Yard:
|
Fujian, CHINA
|
Flag:
|
NIS
|
Place of Registration:
|
NORWAY
|
GRT/NRT:
|
1680/504
|
hereinafter called the Vessel, on the following terms and conditions:
|
1. |
Purchase Price
|
2. |
Deposit
|
|
|
|
|
|
|
(i
|
|
5. |
Time and place of delivery and notices
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i) |
Three (3) originals of Legal Bill of Sale (Maltese Form) duly executed, notarially attested and legalized by Apostille.
|
(ii) |
Original Resolutions of the sole Director of the Sellers approving the sale of the vessel to the Buyers and authorising the issuance of a Power of Attorney (Item 8. (iii)) and the execution of the relevant delivery documents, said document to be notarially attested and legalized by Apostille.
|
(iii) |
Original Power of Attorney issued pursuant to the document referred to under Item 8.(ii) appointing attorneys-in-fact to execute Sellers' delivery documents, attend the documentary closing and effect legal and physical delivery of the Vessel, said document to be notarially attested and legalized by Apostille.
|
(iv) |
|
(v) |
Undertaking that Sellers will provide Buyers as soon as practicable and in any case not later than thirty (30) days from the delivery for the Vessel with an original Deletion Certificate evidencing deletion of the Vessel from NIS Registry.
|
(vi) |
|
(vii) |
Original or copy of written statement of remaining bunkers and unused lubricating oils as on board on delivery.
|
(viii) |
|
(ix) |
|
(x) |
|
(xi) |
|
(xii) |
|
(i) |
Original Resolutions of the Sole Director of the Buyer, approving the purchase of the Vessel and authorization to execute and perform this Agreement, notarially attested and legalized by Apostille.
|
(ii) |
Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement, duly notarially attested and legalised by Apostilled.
|
For the Buyers:
|
c/o TMS Offshore Services Ltd.
Athens licensed shipping office
11, Fragkoklissias str.
GR 151 25
Marousi, Athens, Greece
Email:
management@tms-offshore.com
|
|
For the Sellers:
|
Dr. Adriano Cefai
Chairman
5/1, Merchants Street, Valletta VLT1171, MALTA
Email:
info@cefaiadvocates.com
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
Dr. Adriano Cefai, L.L.D; L.L.M.
5/1, Merchants Street
Valletta VLT1171
MALTA
|
Dr. Renato Cefai
5/1, Merchants Street
Valletta VLT1171
MALTA
|
|
/s/ Dr. Adriano Cefai, L.L.D;L.L.M.
|
/s/ Dr. Renato Cefai
|
|
Name: Dr. Adriano Cefai
|
Name: Dr. Renato Cefai, Director of MARE SERVICES LIMITED
|
|
Title: Chairman of Vega Crusader AS
|
Title: Sole Director of DIANTHUS MARITIME LTD
|
|
|
||
MEMORANDUM OF AGREEMENT
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO 1956.
Code-name
SALEFORM 2012
Revised 1966, 1983 and 1986/87, 1993 and 2012
|
Year of Build:
|
2012
|
Builder/Yard:
|
Fujian, CHINA
|
Flag:
|
NIS
|
Place of Registration:
|
NORWAY
|
GRT/NRT:
|
1695/508
|
hereinafter called the Vessel, on the following terms and conditions:
|
1. |
Purchase Price
|
2. |
Deposit
|
|
|
|
|
|
|
(i
|
|
5. |
Time and place of delivery and notices
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i) |
Three (3) originals of Legal Bill of Sale (Maltese Form) duly executed, notarially attested and legalized by Apostille.
|
(ii) |
Original Resolutions of the sole Director of the Sellers approving the sale of the vessel to the Buyers and authorising the issuance of a Power of Attorney (Item 8. (iii)) and the execution of the relevant delivery documents, said document to be notarially attested and legalized by Apostille.
|
(iii) |
Original Power of Attorney issued pursuant to the document referred to under Item 8.(ii) appointing attorneys-in-fact to execute Sellers' delivery documents, attend the documentary closing and effect legal and physical delivery of the Vessel, said document to be notarially attested and legalized by Apostille.
|
(iv) |
|
(v) |
Undertaking that Sellers will provide Buyers as soon as practicable and in any case not later than thirty (30) days from the delivery for the Vessel with an original Deletion Certificate evidencing deletion of the Vessel from NIS Registry.
|
(vi) |
|
(vii) |
Original or copy of written statement of remaining bunkers and unused lubricating oils as on board on delivery.
|
(viii) |
|
(ix) |
|
(x) |
|
(xi) |
|
(xii) |
|
(i) |
Original Resolutions of the Sole Director of the Buyer, approving the purchase of the Vessel and authorization to execute and perform this Agreement, notarially attested and legalized by Apostille.
|
(ii) |
Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement, duly notarially attested and legalised by Apostilled.
|
For the Buyers:
|
c/o TMS Offshore Services Ltd.
Athens licensed shipping office
11, Fragkoklissias str.
GR 151 25
Marousi, Athens, Greece
Email:
management@tms-offshore.com
|
|
For the Sellers
|
Dr. Adriano Cefai
Chairman
5/1, Merchants Street, Valletta VLT1171, MALTA
Email:
info@cefaiadvocates.com
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
Dr. Adriano Cefai, L.L.D; L.L.M.
5/1, Merchants Street
Valletta VLT1171
MALTA
|
Dr. Renato Cefai
5/1, Merchants Street
Valletta VLT1171
MALTA
|
|
/s/ Dr. Adriano Cefai, L.L.D;L.L.M.
|
/s/ Dr. Renato Cefai
|
|
Name: Dr. Adriano Cefai
|
Name: Dr. Renato Cefai, Director of MARE SERVICES LIMITED
|
|
Title: Chairman of Vega Juniz AS
|
Title: Sole Director of FIORE SHIPPING INC.
|
|
|
||
(continued)
|
Supplytime 2005 Time Charter Party for Offshore Service Vessels
|
PART I
|
Signature (Owners)
MR. PROKOPIOS TSIRIGAKIS
/s/ Prokopios Tsirigakis
|
Signature (Charterers)
MR. JOSSELIN GERE
/s/ Josselin Gere
|
(i) |
The Charterers shall pay a lump sum mobilisation charge as stated in
Box 12
without discount.
|
|
|
(i) |
Persons other than crew members, other than fare paying, and for such purposes to make use of the Vessel's available accommodation not being used on the voyage by the Vessel's Crew. The Owners shall provide suitable provisions and requisites for such persons for which the Charterers shall pay at the rate as stated in
Box 27
per meal and at the rate as stated in
Box 28
per day for the provision of bedding and services for persons using berth accommodation.
|
(ii) |
Lawful cargo whether carried on or under deck.
|
|
|
|
|
(a) |
(i) The Master shall carry out his duties promptly and the Vessel shall render all reasonable services within her capabilities by day and by night and at such times and on such schedules as the Charterers may reasonably require without any obligations of the Charterers to pay to the Owners or the Master, Officers or the Crew of the Vessel any excess or overtime payments. The Charterers shall furnish the Master with all instructions and sailing directions and the Master and Engineer shall keep full and correct logs accessible to the Charterers or their agents.
|
(a) |
(i) The Owners shall comply with the requirements of the International Code for the Security of Ships and of Port Facilities and the relevant amendments to Chapter XI of SOLAS (ISPS Code) relating to the Vessel and "the Company" (as defined by the ISPS Code). If trading to or from the United States or passing through United States waters, the Owners shall also comply with the requirements of the US Maritime Transportation Security Act 2002 (MTSA) relating to the Vessel and the "Owner" (as defined by the MTSA).
|
(ii) |
Upon request the Owners shall provide a copy of the relevant International Ship Security Certificate (or the Interim International Ship Security Certificate) to the Charterers. The Owners shall provide the Charterers with the full style contact details of the Company Security Officer (CSO).
|
(iii) |
Except as otherwise
provided
in this Charter Party, loss, damages, expense or delay (excluding consequential loss, damages, expense or delay) caused by failure on the part of the Owners or "the Company"/"Owner" to comply with the requirements of the ISPS Code/MTSA or this Clause shall be for the Owners' account.
|
(b) |
(i) The Charterers shall provide the Owners and the Master with their full style contact details and, upon request, any other information the Owners require to comply with the ISPS Code/MTSA. Furthermore, the Charterers shall ensure that all sub-charter parties they enter into during the period of this Charter Party contain the following provision:
|
(ii) |
Except as otherwise
provided
in this Charter Party, loss, damages, expense or delay (excluding consequential loss, damages, expense or delay) caused by failure on the part of the Charterers to comply with this Clause shall be for the Charterers account.
|
(c) |
Notwithstanding anything else contained in this Charter Party all delay, costs or expenses whatsoever arising out of or related to security regulations or measures required by the port facility or any relevant authority in accordance with the ISPS Code/MTSA including, but not limited to, security guards, launch services, tug escorts, port security fees or taxes and inspections, shall be for the Charterers' account, unless such costs or expenses result solely from the Owners' negligence. All measures required by the Owners to comply with the Ship Security Plan shall be for the Owners' account.
|
(d) |
If either party makes any payment which is for the other party's account according to this Clause, the other party shall indemnify the paying party.
|
(f) |
(i) Where there is a failure to pay Hire by the due date, the Owners shall notify the Charterers in writing of such failure and further may also suspend the performance of any or all of their obligations under this Charter Party until such time as all the Hire due to the Owners under this Charter Party has been received by the Owners. Throughout any period of suspended performance under this Clause, the Vessel is to be and shall remain on Hire. The Owners' right to suspend performance under this Clause shall be without prejudice to any other rights they may have under this Charter Party.
|
(ii) |
If after 5 days of the written notification referred to in
Clause 12(f)(i)
the Hire has still not been received the Owners may at any time while Hire remains outstanding withdraw the Vessel from the Charter Party. The right to withdraw is to be exercised promptly and in writing and is not dependent upon the Owners first exercising the right to suspend performance of their obligations under the Charter Party pursuant to
Clause 12(f)(i)
above. The receipt by the Owners of a payment from the Charterers after the five day period referred to above has expired but prior to the notice of withdrawal shall not be deemed a waiver of the Owners' right to cancel the Charter Party.
|
(iii) |
Where the Owners choose not to exercise any of the rights afforded to them by this Clause in respect of any particular late payment of Hire, or a series of late payments of Hire, under the Charter Party, this shall not be construed as a waiver of their right either to suspend performance under
Clause 12(f)(i)
or to withdraw the Vessel from the Charter Party under
Clause 12(f)(ii)
in respect of any subsequent late payment under this Charter Party.
|
(iv) |
The Charterers shall indemnify the Owners in respect of any liabilities incurred by the Owners under the Bill of Lading or any other contract of carriage as a consequence of the Owners' proper suspension of and/or withdrawal from any or all of their obligations under this Charter Party.
|
(i) |
the carriage of cargo as noted in
Clause 6(c)(iii)
and (iv);
|
(ii) |
quarantine or risk of quarantine unless caused by the Master, Officers or Crew having communication with the shore at any infected area not in connection with the employment of the Vessel without the consent or the instructions of the Charterers;
|
(iii) |
deviation from her Charter Party duties or exposure to abnormal risks at the request of the Charterers;
|
(iv) |
detention in consequence of being driven into port or to anchorage through stress of weather or trading to shallow harbours or to river or ports with bars or suffering an accident to her cargo, when the expenses resulting from such detention shall be for the Charterers' account howsoever incurred;
|
(v) |
detention or damage by ice;
|
(vi) |
any act or omission of the Charterers, their servants or agents.
|
(i) |
Owners.
- Notwithstanding anything else contained in this Charter Party excepting
Clauses 6(c)(iii)
,
9(b)
,
9(e)
,
9(f)
,
10(d)
,
11
,
12(f)(iv)
,
14(d)
,
15(b)
,
18(c)
,
26
and
27
, the Charterers shall not be responsible for loss of or damage to the property of any member of the Owners' Group, including the Vessel, or for personal injury or death of any member of the Owners' Group arising out of or in any way connected with the performance of this Charter Party, even if such loss, damage, injury or death is caused wholly or partially by the act, neglect, or default of the Charterers' Group, and even if such loss, damage, injury or death is caused wholly or partially by unseaworthiness of any vessel; and the Owners shall indemnify, protect, defend and hold harmless the Charterers from any and against all claims, costs, expenses, actions, proceedings, suits, demands and liabilities whatsoever arising out of or in connection with such loss, damage, personal injury or death.
|
(ii) |
Charterers
. - Notwithstanding anything else contained in this Charter Party excepting
Clause 11
,
15(a)
,
16
and
26
, the Owners shall not be responsible for loss of, damage to, or any liability arising out of anything towed by the Vessel, any cargo laden upon or carried by the Vessel or her tow, the property of any member of the Charterers' Group, whether owned or chartered, including their Offshore Units, or for personal injury or death of any member of the Charterers' Group or of anyone on board anything towed by the Vessel, arising out of or in any way connected with the performance of this Charter Party, even if such loss, damage, liability, injury or death is caused wholly or partially by the act, neglect or default of the Owners' Group, and even if such loss, damage, liability, injury or death is caused wholly or partially by the unseaworthiness of any vessel; and the Charterers shall indemnify, protect, defend and hold harmless the Owners from any and against all claims, costs, expenses, actions, proceedings, suits, demands, and liabilities whatsoever arising out of or in connection with such loss, damage, liability, personal injury or death.
|
(i) |
All exceptions, exemptions, defences, immunities, limitations of liability, indemnities, privileges and conditions granted or provided by this Charter Party or by any applicable statute, rule or regulation for the benefit of the Charterers shall also apply to and be for the benefit of the Charterers' parent, affiliated, related and subsidiary companies; the Charterers' contractors, sub-contractors, co-venturers and customers (having a contractual relationship with the Charterers, always with respect to the job or project on which the Vessel is employed); their respective Employees and their respective underwriters.
|
(ii) |
All exceptions, exemptions, defences, immunities, limitations of liability, indemnities, privileges and conditions granted or provided by this Charter Party or by any applicable statute, rule or regulation for the benefit of the Owners shall also apply to and be for the benefit of the Owners' parent, affiliated, related and subsidiary companies, the Owners' contractors, sub-contractors, the Vessel, its Master, Officers and Crew, its registered owner, its operator, its demise charterer(s), their respective Employees and their respective underwriters.
|
(iii) |
The Owners or the Charterers shall be deemed to be acting as agent or trustee of and for the benefit of all such persons and parties set forth above, but only for the limited purpose of contracting for the extension of such benefits to such persons and parties.
|
(a) |
(i) The Owners shall procure and maintain in effect for the duration of this Charter Party, with reputable insurers, the insurances set forth in "
ANNEX "B"
.
|
(ii) |
The Charterers shall upon request be named as co-insured. The Owners shall upon request cause insurers to waive subrogation rights against the Charterers (as encompassed in
Clause 14(e)(i)
). Co-insurance and/or waivers of subrogation shall be given only insofar as these relate to liabilities which are properly the responsibility of the Owners under the terms of this Charter Party.
|
(i) |
The Charterers shall be responsible for and shall indemnify the Owners against payments made, under any legal rights, to the Master, Officers and Crew in relation to such assistance.
|
(ii) |
The Charterers shall be responsible for and shall reimburse the Owners for any loss or damage sustained by the Vessel or her equipment by reason of giving such assistance and shall also pay the Owners' additional expenses thereby incurred.
|
(iii) |
The Charterers shall be responsible for any actual or potential spill, seepage and/or emission of any pollutant howsoever caused occurring within the offshore site and any pollution resulting therefrom wheresoever it may occur and including but not limited to the cost of such measures as are reasonably necessary to prevent or mitigate pollution damage, and the Charterers shall indemnify the Owners against any liability, cost or expense arising by reason of such actual or potential spill, seepage and/or emission.
|
(iv) |
The Vessel shall not be off-hire as a consequence of giving such assistance, or effecting repairs under
Clause 18(c)(ii)
, and time taken for such repairs shall not count against time granted under
Clause 13(c)
.
|
(v) |
The Charterers shall indemnify the Owners against any liability, cost and/or expense whatsoever in respect of any loss of life, injury, damage or other loss to person or property howsoever arising from such assistance.
|
(i) |
"Owners" shall include the shipowners, bareboat charterers, disponent owners, managers or other operators who are charged with the management of the Vessel, and the Master; and
|
(ii) |
"War Risks" shall include any actual, threatened or reported: war; act of war; civil war; hostilities; revolution; rebellion; civil commotion; warlike operations; laying of mines; acts of piracy; acts of terrorists; acts of hostility or malicious damage;
|
(d) |
(i) The Owners may effect war risks insurance in respect of the Hull and Machinery of the Vessel and their other interests (including, but not limited to, loss of earnings and detention, the crew and their Protection and Indemnity Risks), and the premiums and/or calls therefor shall be for their account.
|
(ii) |
If the Underwriters of such insurance should require payment of premiums and/or calls because, pursuant to the Charterers' orders, the Vessel is within, or is due to enter and remain within, or pass through any area or areas which are specified by such Underwriters as being subject to additional premiums because of War Risks, then the actual premiums and/or calls paid shall be reimbursed by the Charterers to the Owners at the same time as the next payment of hire is due, or upon redelivery, whichever occurs first.
|
(i) |
to comply with all orders, directions, recommen-dations or advice as to departure, arrival, routes, sailing in convoy, ports of call, stoppages, desti-nations, discharge of cargo, delivery, or in any other way whatsoever, which are given by the Government of the Nation under whose flag the Vessel sails, or other Government to whose laws the Owners are subject, or any other Government, body or group whatsoever acting with the power to compel compliance with their orders or directions;
|
(ii) |
to comply with the order, directions or recommendations of any war risks underwriters who have the authority to give the same under the terms of the war risks insurance;
|
(iii) |
to comply with the terms of any resolution of the Security Council of the United Nations, the effective orders of any other Supranational body which has the right to issue and give the same, and with national laws aimed at enforcing the same to which the Owners are subject, and to obey the orders and directions of those who are charged with their enforcement;
|
(iv) |
to discharge at any other port any cargo or part thereof which may render the Vessel liable to confiscation as a contraband carrier;
|
(v) |
to call at any other port to change the crew or any part thereof or other persons on board the Vessel when there is reason to believe that they may be subject to internment, imprisonment or other sanctions.
|
(i) |
Requisition
. - If the government of the state of registry and/or the flag of the Vessel, or any agency thereof, requisitions for hire or title or otherwise takes possession of the Vessel during the Charter Period.
|
(ii) |
Confiscation
. - If any government, individual or group, whether or not purporting to act as a government or on behalf of any government, confiscates, requisitions, expropriates, seizes or otherwise takes possession of the Vessel during the Charter Period (other than by way of arrest for the purpose of obtaining security).
|
(iii) |
Bankruptcy
. - In the event of an order being made or resolution passed for the winding up, dissolu-tion, liquidation or bankruptcy of either party (otherwise than for the purpose of reconstruction or amalgamation) or if a receiver is appointed or if it suspends payment or ceases to carry on business.
|
(iv) |
Loss of Vessel
. - If the Vessel is lost or becomes a constructive total loss, or is missing unless the Owners promptly state their intention to provide, and do in fact provide, within 14 days of the Vessel being lost or missing, at the port or place from which the Vessel last sailed (or some other
|
(v) |
Breakdown.
- If, at any time during the term of this Charter Party a breakdown of the Owners' equipment or Vessel result in the Owners being unable to perform their obligations hereunder for a period exceeding that stated in
Box 33
and have not initiated reasonable steps within 48 hours to remedy the non-performance or provided a substitute vessel pursuant to
Clause 21.
|
(vi) |
Force Majeure
. - If a force majeure condition as defined in
Clause 32
prevents or hinders the performance of the Charter Party for a period exceeding 15 consecutive days from the time at which the impediment causes the failure to perform if notice is given without delay or, if notice is not given without delay, from the time at which notice thereof reaches the other party.
|
(vii) |
Default
. - If either party is in repudiatory breach of its obligations hereunder.
|
(i) |
Either party may at any time and from time to time elect to refer the dispute or part of the dispute to mediation by service on the other party of a written notice (the ''Mediation Notice") calling on the other party to agree to mediation.
|
(ii) |
The other party shall thereupon within 14 calendar days of receipt of the Mediation Notice confirm that they agree to mediation, in which case the parties shall thereafter agree a mediator within a further 14 calendar days, failing which on the application of either party a mediator will be appointed promptly by the Arbitration Tribunal ("the Tribunal") or such person as the Tribunal may designate for that purpose. The mediation shall be conducted in such place and in accordance with such procedure and on such terms as the parties may agree or, in the event of disagreement, as may be set by the mediator.
|
(iii) |
If the other party does not agree to mediate, that fact may be brought to the attention of the Tribunal and may be taken into account by the Tribunal when allocating the costs of the arbitration as between the parties.
|
(iv) |
The mediation shall not affect the right of either party to seek such relief or take such steps as it considers necessary to protect its interest.
|
(v) |
Either party may advise the Tribunal that they have agreed to mediation. The arbitration procedure shall continue during the conduct of the mediation but the Tribunal may take the mediation timetable into account when setting the timetable for steps in the arbitration.
|
(vi) |
Unless otherwise agreed or specified in the mediation terms, each party shall bear its own costs incurred in the mediation and the parties shall share equally the mediator's costs and expenses.
|
(vii) |
The mediation process shall be without prejudice and confidential and no information or documents disclosed during it shall be revealed to the Tribunal except to the extent that they are disclosable under the law and procedure governing the arbitration.
(Note: The parties should be aware that the mediation process may not necessarily interrupt time limits.)
If
Box 34
in PART I is not appropriately filled in,
sub-clause 34(a)
of this Clause shall apply. Sub-clause (d) shall apply in all cases.
|
PRINCIPAL PARTICULARS
|
|
LENGTH OA:
LENGTH WATERLINE:
BREADTH MOULDED:
DEPTH MOULDED:
DRAFE MAX.:
DWT:
LIGHTSHIP:
NAME:
EX-NAME:
TYPE:
HULL NO.:
OWNERS:
BUILT:
GRT/NRT
CLASS / CLASS No
CLASS NOTATION:
FLAG:
CALL SIGN:
IMO NO.
|
59.25 M
56.00 M
14.95 M
6.10 M
4.964 M
1456.912 MT (Summer)
1444.190 MT
VEGA CRUSADER
SK LINE 7J
PSV, OFFSHORE SUPPORT VESSEL, FIF1-1, DPS-1
SK71
VEOA CRUSADER AS.
2012, PUJIAN CHINA (24/08/20102)
1680/504
ABS / 237851
+AI, (E), OFFSHORE SUPPORT VESSEL, FIRE FIGHTING VESSEL CLASS 1, +AMS, DPS-1
NORWAY
LAQF7
9651345
|
PERFORMANCE
|
|
MAX. SPEED:
ECO. SPEED:
TYPE OF FUEL:
FUEL CONSUMPTION:
BOLLARD PULL:
|
13.0 KNOTS
10.0 KNOTS
MGO
APPROX. 12M3/24HR@MAX SPEED
APPROX. 7M3/24HR@ECO SPEED
62 TONNES (100% MCR)
|
CARGO CAPACITIES
|
|
DECK CARGO:
CLEAR DECK AREA:
DECK STRENGTH:
FUEL OIL:
FRESH WATER:
BALLAST/DRILL WATER:
CEMENT TANK:
FREEZER/CHILLER:
FOAM DETERGENT:
|
500 MT
350 M2
7.50 MT/M2
585.93 M3
837.91 M3
205.82 M3
187 M3 (4 X 1650 FT3)
15 M3/15 M3
13 M3/13 M3
|
MACHINERY
|
|
MAIN ENGINES:
MAIN GENERATORS:
EMERGENCY GEN.:
BOW THRUSTERS:
AFT THRUSTERS:
STEERING GEAR:
RUDDERS:
PROPULSION:
ANCHOR WINCH:
BOW ANCHOR:
ANCHOR CHARTS:
CAPSTAN:
TUGGER:
DECK CRANE:
FUEL OIL PUMP:
FRESH WATER PUMP:
SWB/DRILL WATER PUMP:
LIQUID/MUD PUMP:
BILGE/BALLAST PUMP:
GS/FIRE PUMP:
EMERGENCY FIRE PUMP:
BA RECHARGING COMPRESSOR:
BULK CEMENT PUMP:
|
2 X CAT 351BB - 2 X 2575 DHP @ 1600RPM
2 * CAT C18 450 KW, 50 HZ, WATER COOLED
1 X PERKINS 65 KW
2 X 8 MT KAWASAKI CPP
1 X 6 MT BERG CPP
ELECTROHYDROLIC
DECKER HIGH LIFT FLAP TYPE
2 x BERG CPP IN KORT NOZZLES
ELLECTROHYDRAULIC 9 MT PULL
2 X HIGH HOLDING POWER 1305 KGR
440M 38MM GRADE-2
2 X 5MT & 15M/MIN
2 X 10MT & 15M/MIN
1 X 3MT & 9M
1*100M3/HR @ 75M HEAD
1* 100M3/HR @ 75M HEAD
1* 100M3/HR @ 75M HEAD
1* 75M5/HR @ 75M HEAD
1* 75M3/HR @ 75M HEAD
1* 75M3/HR @ 75M HEAD
1* 25M3/HR @ 45M HEAD
1* 75M3/MIN @ 200 BAR
1* 13M3/MINUTE @ 80 PSI AIR PRESSURE
|
RADIO / NAVIGATION EQUIPMENT
|
|
GMDSS:
INM-C:
INM-E:
V-SAT:
IRRIDIUM:
NAVTEX RECEIVER:
RADARS:
VHF:
NAVTEX RECEIVER:
EPIRS:.
OPS:
GYRO:
SART:
AUTO PILOT:
MAGNETIC COMPASS:
WEATHER FAX:
SPEED LOG:
DPI:
JOYSTICK:
CYSCAN:
|
FURUNO
FURUNO
FORUNO
ORBIT / GLOBTECH
FURUNO
FURUNO
2 UNITS FURONO
3 UNITS
FURUNO/JRC
SAILOR
FURUNO/JRC
FURUNO/JRC
FURUNO/JRC
2 X ANSCHUETZ
1 X ANSCHUETZ
SAURA
JRC
1 X FURUNO DS-80
1 X KONGSBERG
1 X KONGSBERG
|
ANNEX "B" to Time Charter Party for Offshore Service Vessels
Code Name: SUPPLYTIME 2005
|
(1) |
Marine Hull Insurance
. – Hull and Machinery Insurance shall be provided with limits equal to those normally carried by the Owners for the Vessel.
|
(2) |
Protection and Indemnity (Marine Liability Insurance. -
Protection and Indemnity (P&I) or Marine Liability Insurance with coverage equivalent to the cover provided by members of the International Group Protection and Indemnity Associations with a limit of cover no less than USD for any one event. The cover shall include liability for collision and damage to fixed and floating objects to the extent not covered by the insurance in (1) above. |
|
|
|
|
|
|
|
|
|
|
|
|
(continued)
|
Supplytime 2005 Time Charter Party for Offshore Service Vessels
|
PART I
|
Signature (Owners)
MR. PROKOPIOS TSIRIGAKIS
/s/ Prokopios Tsirigakis
|
Signature (Charterers)
MR. JOSSELIN GERE
/s/ Josselin Gere
|
(i) |
The Charterers shall pay a lump sum mobilisation charge as stated in
Box 12
without discount.
|
|
|
(i) |
Persons other than crew members, other than fare paying, and for such purposes to make use of the Vessel's available accommodation not being used on the voyage by the Vessel's Crew. The Owners shall provide suitable provisions and requisites for such persons for which the Charterers shall pay at the rate as stated in
Box 27
per meal and at the rate as stated in
Box 28
per day for the provision of bedding and services for persons using berth accommodation.
|
(ii) |
Lawful cargo whether carried on or under deck.
|
|
|
|
|
(a) |
(i) The Master shall carry out his duties promptly and the Vessel shall render all reasonable services within her capabilities by day and by night and at such times and on such schedules as the Charterers may reasonably require without any obligations of the Charterers to pay to the Owners or the Master, Officers or the Crew of the Vessel any excess or overtime payments. The Charterers shall furnish the Master with all instructions and sailing directions and the Master and Engineer shall keep full and correct logs accessible to the Charterers or their agents.
|
(a) |
(i) The Owners shall comply with the requirements of the International Code for the Security of Ships and of Port Facilities and the relevant amendments to Chapter XI of SOLAS (ISPS Code) relating to the Vessel and "the Company" (as defined by the ISPS Code). If trading to or from the United States or passing through United States waters, the Owners shall also comply with the requirements of the US Maritime Transportation Security Act 2002 (MTSA) relating to the Vessel and the "Owner" (as defined by the MTSA).
|
(ii) |
Upon request the Owners shall provide a copy of the relevant International Ship Security Certificate (or the Interim International Ship Security Certificate) to the Charterers. The Owners shall provide the Charterers with the full style contact details of the Company Security Officer (CSO).
|
(iii) |
Except as otherwise
provided
in this Charter Party, loss, damages, expense or delay (excluding consequential loss, damages, expense or delay) caused by failure on the part of the Owners or "the Company"/"Owner" to comply with the requirements of the ISPS Code/MTSA or this Clause shall be for the Owners' account.
|
(b) |
(i) The Charterers shall provide the Owners and the Master with their full style contact details and, upon request, any other information the Owners require to comply with the ISPS Code/MTSA. Furthermore, the Charterers shall ensure that all sub-charter parties they enter into during the period of this Charter Party contain the following provision:
|
(ii) |
Except as otherwise
provided
in this Charter Party, loss, damages, expense or delay (excluding consequential loss, damages, expense or delay) caused by failure on the part of the Charterers to comply with this Clause shall be for the Charterers account.
|
(c) |
Notwithstanding anything else contained in this Charter Party all delay, costs or expenses whatsoever arising out of or related to security regulations or measures required by the port facility or any relevant authority in accordance with the ISPS Code/MTSA including, but not limited to, security guards, launch services, tug escorts, port security fees or taxes and inspections, shall be for the Charterers' account, unless such costs or expenses result solely from the Owners' negligence. All measures required by the Owners to comply with the Ship Security Plan shall be for the Owners' account.
|
(d) |
If either party makes any payment which is for the other party's account according to this Clause, the other party shall indemnify the paying party.
|
(f) |
(i) Where there is a failure to pay Hire by the due date, the Owners shall notify the Charterers in writing of such failure and further may also suspend the performance of any or all of their obligations under this Charter Party until such time as all the Hire due to the Owners under this Charter Party has been received by the Owners. Throughout any period of suspended performance under this Clause, the Vessel is to be and shall remain on Hire. The Owners' right to suspend performance under this Clause shall be without prejudice to any other rights they may have under this Charter Party.
|
(ii) |
If after 5 days of the written notification referred to in
Clause 12(f)(i)
the Hire has still not been received the Owners may at any time while Hire remains outstanding withdraw the Vessel from the Charter Party. The right to withdraw is to be exercised promptly and in writing and is not dependent upon the Owners first exercising the right to suspend performance of their obligations under the Charter Party pursuant to
Clause 12(f)(i)
above. The receipt by the Owners of a payment from the Charterers after the five day period referred to above has expired but prior to the notice of withdrawal shall not be deemed a waiver of the Owners' right to cancel the Charter Party.
|
(iii) |
Where the Owners choose not to exercise any of the rights afforded to them by this Clause in respect of any particular late payment of Hire, or a series of late payments of Hire, under the Charter Party, this shall not be construed as a waiver of their right either to suspend performance under
Clause 12(f)(i)
or to withdraw the Vessel from the Charter Party under
Clause 12(f)(ii)
in respect of any subsequent late payment under this Charter Party.
|
(iv) |
The Charterers shall indemnify the Owners in respect of any liabilities incurred by the Owners under the Bill of Lading or any other contract of carriage as a consequence of the Owners' proper suspension of and/or withdrawal from any or all of their obligations under this Charter Party.
|
(i) |
the carriage of cargo as noted in
Clause 6(c)(iii)
and (iv);
|
(ii) |
quarantine or risk of quarantine unless caused by the Master, Officers or Crew having communication with the shore at any infected area not in connection with the employment of the Vessel without the consent or the instructions of the Charterers;
|
(iii) |
deviation from her Charter Party duties or exposure to abnormal risks at the request of the Charterers;
|
(iv) |
detention in consequence of being driven into port or to anchorage through stress of weather or trading to shallow harbours or to river or ports with bars or suffering an accident to her cargo, when the expenses resulting from such detention shall be for the Charterers' account howsoever incurred;
|
(v) |
detention or damage by ice;
|
(vi) |
any act or omission of the Charterers, their servants or agents.
|
(i) |
Owners.
- Notwithstanding anything else contained in this Charter Party excepting
Clauses 6(c)(iii)
,
9(b)
,
9(e)
,
9(f)
,
10(d)
,
11
,
12(f)(iv)
,
14(d)
,
15(b)
,
18(c)
,
26
and
27
, the Charterers shall not be responsible for loss of or damage to the property of any member of the Owners' Group, including the Vessel, or for personal injury or death of any member of the Owners' Group arising out of or in any way connected with the performance of this Charter Party, even if such loss, damage, injury or death is caused wholly or partially by the act, neglect, or default of the Charterers' Group, and even if such loss, damage, injury or death is caused wholly or partially by unseaworthiness of any vessel; and the Owners shall indemnify, protect, defend and hold harmless the Charterers from any and against all claims, costs, expenses, actions, proceedings, suits, demands and liabilities whatsoever arising out of or in connection with such loss, damage, personal injury or death.
|
(ii) |
Charterers
. - Notwithstanding anything else contained in this Charter Party excepting
Clause 11
,
15(a)
,
16
and
26
, the Owners shall not be responsible for loss of, damage to, or any liability arising out of anything towed by the Vessel, any cargo laden upon or carried by the Vessel or her tow, the property of any member of the Charterers' Group, whether owned or chartered, including their Offshore Units, or for personal injury or death of any member of the Charterers' Group or of anyone on board anything towed by the Vessel, arising out of or in any way connected with the performance of this Charter Party, even if such loss, damage, liability, injury or death is caused wholly or partially by the act, neglect or default of the Owners' Group, and even if such loss, damage, liability, injury or death is caused wholly or partially by the unseaworthiness of any vessel; and the Charterers shall indemnify, protect, defend and hold harmless the Owners from any and against all claims, costs, expenses, actions, proceedings, suits, demands, and liabilities whatsoever arising out of or in connection with such loss, damage, liability, personal injury or death.
|
(i) |
All exceptions, exemptions, defences, immunities, limitations of liability, indemnities, privileges and conditions granted or provided by this Charter Party or by any applicable statute, rule or regulation for the benefit of the Charterers shall also apply to and be for the benefit of the Charterers' parent, affiliated, related and subsidiary companies; the Charterers' contractors, sub-contractors, co-venturers and customers (having a contractual relationship with the Charterers, always with respect to the job or project on which the Vessel is employed); their respective Employees and their respective underwriters.
|
(ii) |
All exceptions, exemptions, defences, immunities, limitations of liability, indemnities, privileges and conditions granted or provided by this Charter Party or by any applicable statute, rule or regulation for the benefit of the Owners shall also apply to and be for the benefit of the Owners' parent, affiliated, related and subsidiary companies, the Owners' contractors, sub-contractors, the Vessel, its Master, Officers and Crew, its registered owner, its operator, its demise charterer(s), their respective Employees and their respective underwriters.
|
(iii) |
The Owners or the Charterers shall be deemed to be acting as agent or trustee of and for the benefit of all such persons and parties set forth above, but only for the limited purpose of contracting for the extension of such benefits to such persons and parties.
|
(a) |
(i) The Owners shall procure and maintain in effect for the duration of this Charter Party, with reputable insurers, the insurances set forth in "
ANNEX "B"
.
|
(ii) |
The Charterers shall upon request be named as co-insured. The Owners shall upon request cause insurers to waive subrogation rights against the Charterers (as encompassed in
Clause 14(e)(i)
). Co-insurance and/or waivers of subrogation shall be given only insofar as these relate to liabilities which are properly the responsibility of the Owners under the terms of this Charter Party.
|
(i) |
The Charterers shall be responsible for and shall indemnify the Owners against payments made, under any legal rights, to the Master, Officers and Crew in relation to such assistance.
|
(ii) |
The Charterers shall be responsible for and shall reimburse the Owners for any loss or damage sustained by the Vessel or her equipment by reason of giving such assistance and shall also pay the Owners' additional expenses thereby incurred.
|
(iii) |
The Charterers shall be responsible for any actual or potential spill, seepage and/or emission of any pollutant howsoever caused occurring within the offshore site and any pollution resulting therefrom wheresoever it may occur and including but not limited to the cost of such measures as are reasonably necessary to prevent or mitigate pollution damage, and the Charterers shall indemnify the Owners against any liability, cost or expense arising by reason of such actual or potential spill, seepage and/or emission.
|
(iv) |
The Vessel shall not be off-hire as a consequence of giving such assistance, or effecting repairs under
Clause 18(c)(ii)
, and time taken for such repairs shall not count against time granted under
Clause 13(c)
.
|
(v) |
The Charterers shall indemnify the Owners against any liability, cost and/or expense whatsoever in respect of any loss of life, injury, damage or other loss to person or property howsoever arising from such assistance.
|
(i) |
"Owners" shall include the shipowners, bareboat charterers, disponent owners, managers or other operators who are charged with the management of the Vessel, and the Master; and
|
(ii) |
"War Risks" shall include any actual, threatened or reported: war; act of war; civil war; hostilities; revolution; rebellion; civil commotion; warlike operations; laying of mines; acts of piracy; acts of terrorists; acts of hostility or malicious damage;
|
(d) |
(i) The Owners may effect war risks insurance in respect of the Hull and Machinery of the Vessel and their other interests (including, but not limited to, loss of earnings and detention, the crew and their Protection and Indemnity Risks), and the premiums and/or calls therefor shall be for their account.
|
(ii) |
If the Underwriters of such insurance should require payment of premiums and/or calls because, pursuant to the Charterers' orders, the Vessel is within, or is due to enter and remain within, or pass through any area or areas which are specified by such Underwriters as being subject to additional premiums because of War Risks, then the actual premiums and/or calls paid shall be reimbursed by the Charterers to the Owners at the same time as the next payment of hire is due, or upon redelivery, whichever occurs first.
|
(i) |
to comply with all orders, directions, recommen-dations or advice as to departure, arrival, routes, sailing in convoy, ports of call, stoppages, desti-nations, discharge of cargo, delivery, or in any other way whatsoever, which are given by the Government of the Nation under whose flag the Vessel sails, or other Government to whose laws the Owners are subject, or any other Government, body or group whatsoever acting with the power to compel compliance with their orders or direc-tions;
|
(ii) |
to comply with the order, directions or recommen-dations of any war risks underwriters who have the authority to give the same under the terms of the war risks insurance;
|
(iii) |
to comply with the terms of any resolution of the Security Council of the United Nations, the effective orders of any other Supranational body which has the right to issue and give the same, and with national laws aimed at enforcing the same to which the Owners are subject, and to obey the orders and directions of those who are charged with their enforcement;
|
(iv) |
to discharge at any other port any cargo or part thereof which may render the Vessel liable to confiscation as a contraband carrier;
|
(v) |
to call at any other port to change the crew or any part thereof or other persons on board the Vessel when there is reason to believe that they may be subject to internment, imprisonment or other sanctions.
|
(i) |
Requisition
. - If the government of the state of registry and/or the flag of the Vessel, or any agency thereof, requisitions for hire or title or otherwise takes possession of the Vessel during the Charter Period.
|
(ii) |
Confiscation
. - If any government, individual or group, whether or not purporting to act as a government or on behalf of any government, confiscates, requisitions, expropriates, seizes or otherwise takes possession of the Vessel during the Charter Period (other than by way of arrest for the purpose of obtaining security).
|
(iii) |
Bankruptcy
. - In the event of an order being made or resolution passed for the winding up, dissolu-tion, liquidation or bankruptcy of either party (otherwise than for the purpose of reconstruction or amalgamation) or if a receiver is appointed or if it suspends payment or ceases to carry on business.
|
(iv) |
Loss of Vessel
. - If the Vessel is lost or becomes a constructive total loss, or is missing unless the Owners promptly state their intention to provide, and do in fact provide, within 14 days of the Vessel being lost or missing, at the port or place from which the Vessel last sailed (or some other
|
(v) |
Breakdown.
- If, at any time during the term of this Charter Party a breakdown of the Owners' equipment or Vessel result in the Owners being unable to perform their obligations hereunder for a period exceeding that stated in
Box 33
and have not initiated reasonable steps within 48 hours to remedy the non-performance or provided a substitute vessel pursuant to
Clause 21.
|
(vi) |
Force Majeure
. - If a force majeure condition as defined in
Clause 32
prevents or hinders the performance of the Charter Party for a period exceeding 15 consecutive days from the time at which the impediment causes the failure to perform if notice is given without delay or, if notice is not given without delay, from the time at which notice thereof reaches the other party.
|
(vii) |
Default
. - If either party is in repudiatory breach of its obligations hereunder.
|
(i) |
Either party may at any time and from time to time elect to refer the dispute or part of the dispute to mediation by service on the other party of a written notice (the ''Mediation Notice") calling on the other party to agree to mediation.
|
(ii) |
The other party shall thereupon within 14 calendar days of receipt of the Mediation Notice confirm that they agree to mediation, in which case the parties shall thereafter agree a mediator within a further 14 calendar days, failing which on the application of either party a mediator will be appointed promptly by the Arbitration Tribunal ("the Tribunal") or such person as the Tribunal may designate for that purpose. The mediation shall be conducted in such place and in accordance with such procedure and on such terms as the parties may agree or, in the event of disagreement, as may be set by the mediator.
|
(iii) |
If the other party does not agree to mediate, that fact may be brought to the attention of the Tribunal and may be taken into account by the Tribunal when allocating the costs of the arbitration as between the parties.
|
(iv) |
The mediation shall not affect the right of either party to seek such relief or take such steps as it considers necessary to protect its interest.
|
(v) |
Either party may advise the Tribunal that they have agreed to mediation. The arbitration procedure shall continue during the conduct of the mediation but the Tribunal may take the mediation timetable into account when setting the timetable for steps in the arbitration.
|
(vi) |
Unless otherwise agreed or specified in the mediation terms, each party shall bear its own costs incurred in the mediation and the parties shall share equally the mediator's costs and expenses.
|
(vii) |
The mediation process shall be without prejudice and confidential and no information or documents disclosed during it shall be revealed to the Tribunal except to the extent that they are disclosable under the law and procedure governing the arbitration.
(Note: The parties should be aware that the mediation process may not necessarily interrupt time limits.)
If
Box 34
in PART I is not appropriately filled in,
sub-clause 34(a)
of this Clause shall apply. Sub-clause (d) shall apply in all cases.
|
ANNEX "B" to Time Charter Party for Offshore Service Vessels
Code Name: SUPPLYTIME 2005
|
(1) |
Marine Hull Insurance
. – Hull and Machinery Insurance shall be provided with limits equal to those normally carried by the Owners for the Vessel.
|
(2) |
Protection and Indemnity (Marine Liability Insurance. -
Protection and Indemnity (P&I) or Marine Liability Insurance with coverage equivalent to the cover provided by members of the International Group Protection and Indemnity Associations with a limit of cover no less than USD for any one event. The cover shall include liability for collision and damage to fixed and floating objects to the extent not covered by the insurance in (1) above. |
|
|
|
|
|
|
|
|
|
|
|
|
MEMORANDUM OF AGREEMENT
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO 1956.
Code-name
SALEFORM 2012
Revised 1966, 1983 and 1986/87, 1993 and 2012
|
Year of Build:
|
2013
|
Builder/Yard:
|
Fujian, CHINA
|
Flag:
|
NIS
|
Place of Registration:
|
NORWAY
|
GRT/NRT:
|
1695/508
|
hereinafter called the "Vessel", on the following terms and conditions:
|
1. |
Purchase Price
|
2. |
Deposit
|
|
|
|
|
|
|
(i
|
|
5. |
Time and place of delivery and notices
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i) |
Three (3) originals of Legal Bill of Sale (Maltese Form) duly executed, notarially attested and legalized by Apostille.
|
(ii) |
Original Resolutions of the sole Director of the Sellers approving the sale of the Vessel to the Buyers and authorising the issuance of a Power of Attorney (Item 8. (iii)) and the execution of the relevant delivery documents, said document to be notarially attested and legalized by Apostille.
|
(iii) |
Original Power of Attorney issued pursuant to the document referred to under Item 8.(ii) appointing attorneys-in-fact to execute Sellers' delivery documents, attend the documentary closing and effect legal and physical delivery of the Vessel, said document to be notarially attested and legalized by Apostille.
|
(iv) |
|
(v) |
Undertaking that Sellers will provide Buyers as soon as practicable and in any case not later than thirty (30) days from the delivery for the Vessel with an original Deletion Certificate evidencing deletion of the Vessel from NIS Registry.
|
(vi) |
|
(vii) |
Original or copy of written statement of remaining bunkers and unused lubricating oils as on board on delivery.
|
(viii) |
|
(ix) |
|
(x) |
|
(xi) |
|
(xii) |
|
(i) |
Original Resolutions of the Sole Director of the Buyer, approving the purchase of the Vessel and authorization to execute and perform this Agreement, notarially attested and legalized by Apostille.
|
(ii) |
Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement, duly notarially attested and legalised by Apostilled.
|
For the Buyers:
|
c/o TMS Offshore Services Ltd.
Athens licensed shipping office
11, Fragkoklissias str.
GR 151 25
Marousi, Athens, Greece
Email:
management@tms-offshore.com
|
|
For the Sellers:
|
Dr. Adriano Cefai
Chairman
5/1, Merchants Street, Valletta VLT1171, MALTA
Email:
info@cefaiadvocates.com
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
/s/ Dr. Adriano Cefai
|
/s/ Mr. Prokopios (Akis) Tsirigakis
|
|
Name: Dr. Adriano Cefai
|
Name: Mr. Prokopios (Akis) Tsirigakis
|
|
Title: Chairman of Vega Inruda AS
|
Title: Attorney-in-fact of NEWMONT CHARTERING LIMITED
|
|
MEMORANDUM OF AGREEMENT
Dated:
22nd August, 2016
|
Norwegian Shipbroker's Association's Memorandum of Agreement for sale and purchase of ships. Adopted by The Baltic and international Maritime Council (BIMCO) in 1956.
Code-name
SALEFORM 1993
Revised 1966, 1983 and 1986/87.
|
1.
|
Purchase Price:
|
US$ 4,250,000
|
|
|
|
2.
|
Deposit
|
|
|
||
As security for the correct fulfilment of this Agreement the Buyers shall pay a deposit of
|
||
(
date of this Agreement, the
Escrow Account is open and subjects have been lifted whichever the later.
This deposit shall be placed with
Sellers' Nominated Law Firm in Hong Kona Messrs. Ince & Co
|
||
and held by them
the Buyers, to
be released in accordance with joint written instructions of the Sellers and the Buyers.
|
||
Interest, if any, to be credited to the Buyers. Any fee charged for holding the said deposit shall be
borne equally by the Sellers and the Buyers.
|
||
Escrow Agent account details are as follows:
|
||
|
||
3.
|
Payment
|
|
|
||
The
bunker/luboils etc. shall be paid in full free of bank charges to Sellers' nominated bank
|
||
on delivery of the Vessel, but not later than 3 banking days after the Vessel is in every respect
|
||
physically ready for delivery in accordance with the terms and conditions of this Agreement and
|
||
Notice of Readiness has been given in accordance with
Clause 5
.
|
||
|
||
4.
|
Inspections
|
a)*
|
The Buyers have inspected and accepted the Vessel and her classification records and have
|
Accepted both the Vessel and the Vessel's classification records. The Buyers have
|
|
Physically inspected the Vessel on July 29
th
, 2016 at Wenzhou, China.
|
|
|
h
|
|
outright and definite, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.
|
Notices, time and place of delivery
|
|
|
a)
|
The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall
|
|
provide the Buyers with
15/10/7 approximate days notice of the expected time of delivery,
and
3/2/1
definite
days notice.
|
|
|
|
|
|
|
|
Buyers shall take delivery of the Vessel within three (3) business days (Saturdays; Sunday/
holidays in England and China excluded) after the Sellers have tendered to the Buyers a
Notice of Readiness for Delivery, the date of tendering such notice being exclusive. The
Notice of Readiness for Delivery shall be submitted by the Sellers to the Buyers (any
business day, day and night) once the Vessel is ready for delivery. The Sellers shall not
tender Notice of Readiness prior to completion of the underwater inspection unless
Buyers have waived same
|
b)
|
The Vessel shall be delivered
berth buoy/port
anchorage
and
/or in
Dry-dock
September, 2016
|
|
in the Sellers' option
be delivered to the Buyers upon completion of present voyage (Indo/China trip).
|
|
Date of cancelling (see
Clauses 5 c
),
6 b) (iii)
and
14
):
1
st
October, 2016 in
Buyers' option.
|
|
|
c)
|
If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the
|
|
Vessel will not be ready for delivery by the cancelling date they may notify the Buyers in
|
|
writing stating the date when they anticipate that the Vessel will be ready for delivery and
|
|
propose a new cancelling date. Upon receipt of such notification the Buyers shall have the
|
|
option of either cancelling this Agreement in accordance with
Clause 14
within
|
|
days of receipt of the notice or of accepting the new date as the new cancelling date. If the
|
|
Buyers have not declared their option within
|
|
notification or if the Buyers accept the new date, the date proposed in the Sellers' notification
|
|
shall be deemed to be the new cancelling date and shall be substituted for the cancelling
|
|
date stipulated in
line 61
.
|
|
If this Agreement is maintained with the new cancelling date all other terms and conditions
|
|
hereof including those contained in
Clauses 5 a
) and
5 c
) shall remain unaltered and in full
|
|
force and effect. Cancellation or failure to cancel shall be entirely without prejudice to any
|
|
claim for damages the Buyers may have under
Clause 14
for the Vessel not being ready by
|
the original cancelling date.
|
|
|
d)
|
Should the Vessel become an actual, constructive or compromised total loss before delivery
|
|
the deposit together with interest earned shall be released immediately to the Buyers
|
|
whereafter this Agreement shall be null and void.
|
|
|
6.
|
Drydocking/Divers Inspection
|
|
|
a)**
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
b)**
|
However, the Buyers shall have the right at their risk and
expense to arrange for an
Vessel's
class surveyor with Buyers' right to attend without interference at the video monitor or in
any way with class surveyors work. Sellers will give at least 3 (three) days' notice to
Buyers of the place/time they intend to make the vessel available for such inspection.
Buyers' failure to appoint divers approved by class or attend underwater inspection as per
Sellers' notification will be deemed a waiver of their right to inspect the vessel's under-
water parts. The Class surveyor to be appointed by the Sellers and all expenses to be for
the Buyers' account. If the conditions at the place where the Vessel is made available for
such inspection are unsuitable for such inspection, the Sellers shall at their risk and
expense make the Vessel available at a suitable alternative place. Thereafter the Vessel
shall be delivered at such alternative suitable place/port.
Should any damage affecting class be found by class surveyor in under-water parts and
class approves postponement of repair of such damage, then the Sellers have the option
to repair same to class's satisfaction or compensate Buyers in cash which shall be
deducted from the purchase price at the time of closing. The cash compensation shall be
based upon the average of 2 (two) reputable Chinese shipyards' quotation, one obtained
by each party. It is understood by both parties that the amount of the monetary settlement
is confined to direct repair cost only and does not include indirect cost such as dry-
docking fee, general expenses, deviation cost, off hire and other costs whatsoever and
that such amount of the monetary settlement is deducted from the Purchase Price (for
labour and material costs only) at the time of delivery.
Should any damage affecting class be found by class surveyor in under-water parts and
class requires immediate repairs of such damage in a dry-dock and Sellers arrange that
the Vessel is dry-docked, the Buyers have the right to clean and paint the underwater
parts below the summer loadline at the Buyers' time, risk and account without interfering
with the Sellers' or vessel's class work and without affecting the smooth and timely
delivery of the Vessel. But in any case, the Tailshaft shall not be drawn unless requested
by the Class Surveyor and in case Vessel has to be drydocked.
If, however, the Buyers' work in dry-dock is still in progress when the Sellers have
completed their work, the Sellers have the right to tender the Notice of Readiness for
Delivery whilst the Vessel is still in dry-dock and the Buyers are obliged to take delivery of
the Vessel immediately after such Notice of Readiness tendered, whether the Vessel is in
dry-dock or not. Any extra time and cost for the additional dry-docking incurred by reason
of such Buyers' work shall be at the Buyers' risk and account.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
**
|
|
|
|
7.
|
Spares/bunkers, etc.
|
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on
|
|
order,
and navigational equipment. The Vessel does not have a spare anchor, or a spare tail-end shaft, or a
spare propeller.
|
Excluded from this sale are personal effects of Master, Officers and Crew including slop chest, log
books, holy icons, ISM manuals, original certificates which must be surrendered to authorities
and hired or third party's items, which shall be taken ashore by the Sellers upon or before
delivery of the Vessel.
|
Notwithstanding the above the following items to be excluded from the Sale:
|
a) Oxygen / Acetylene / Freon Gas Bottles
b) All Log Books for Deck, Engine and radio with Buyer's right to photocopy available logs
onboard at their own expense, but the Sellers shall provide the scanning copy of same.
c) All ISPS, ISM And quality documentation and correspondence.
d) Vessel's wireless e-mail system and server
e) Training video library, books.
f) Crew / Officers library / walport videos
g) All Master's Slopchest / Bonded stores, all Master's and crew's personal belongings.
h) Personal lap-top computers (Personal lap-top computers of crew. Total 13 pieces)
i) Personal cell phones (Personal cell phones of crew. Total 31 pieces)
j) Contents of Master's safe
k) Works of Art; Originals, copies, prints, statues
1) Certificates / documents to be returned to authorities (Need to have Vessel's original certificate
of Registry to be returned back to the authorities)
m) All leased rented, hired equipment. (Sellers confirmed No leased rented, hire equipment on
board.)
|
|
Price to include everything belonging to the Vessel on board, including all navaids and wireless
equipment.
|
|
|
|
|
|
|
|
The Buyers to pay extra for
platts prices are available (hereby Hong Kong platts price to be applied) one (1) day before
vessel's delivery to the Buyers. Also Buyers to pay extra for vessel's all types of unused
lubricants and greases that have not passed through vessel's systems in designated storage
tanks and sealed drums/pails at Seller's last net prices evidenced by invoices/vouchers. Sellers
will use their reasonable commercial efforts so that the bunkers remaining on board at delivery
shall not exceed 30% of corresponding tank capacity.
|
|
|
|
|
|
|
8.
|
Documentation
|
|
|
The place of closing:
Hong Kong, China
|
|
|
|
Documents to be mutually agreed between Buyers and Sellers and to be incorporated as an
Addendum to the MOA, but in any case failure to agree documentation shall not be a reason to
invalidate the MOA.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9.
|
Encumbrances
|
|
|
The Sellers warrant that the Vessel shall be delivered
charters, all encumbrances,
mortgages, and maritime liens or any other debts whatsoever
at the time
of delivery. The
|
|
Sellers hereby undertake
to indemnify the Buyers against all consequences of claims made against the Vessel which have
|
|
been incurred prior to the time of delivery.
|
|
|
|
|
|
10.
|
Taxes, etc.
|
|
|
Any taxes, fees and expenses in connection with the purchase and registration under the Buyers' flag
|
|
shall be for the Buyers' account, whereas similar charges in connection with the closing of the Sellers'
|
|
register shall be for the Sellers' account.
|
|
|
|
11.
|
Condition on delivery
|
|
|
The Vessel shall be delivered "as is" however with her class maintained, free of class
conditions/recommendations affecting the class with all her National and International certificates
clean and valid with at least two (2) months validitity at the time of delivery. CSM items to be also
up to date without out-standings. (except it the vessel is in Special Survey Machinery Cycle and
the CSM system is not applicable)
|
|
All plans, drawings and instruction manuals (excluding ISM manuals) which are on board shall be
delivered to the Buyers' Master as they are upon delivery of the Vessel.
|
|
All remaining plans, drawings and instruction manuals in the Sellers' possession shall be
forwarded to the Buyers' main office after delivery. Forwarding charges, if any, shall be for the
Buyers account.
|
|
Logbooks shall be retained by the Sellers. However the Buyers have the right to take photocopies
of the available logbooks onboard before delivery at the Buyers' cost.
|
|
|
|
|
16.
|
Arbitration
|
|
|
a)*
|
This Agreement shall be governed by and construed in accordance with English law and
|
|
any dispute arising out of this Agreement shall be referred to arbitration in London in
|
|
accordance with the Arbitration Acts 1950 and 1979 or any statutory modification or
|
|
re-enactment thereof for the time being in force, one arbitrator being appointed by each
|
|
party. Arbitrators to be members of the London Maritime Arbitrators Association
.
On the
receipt by one party of the nomination in writing of the other party's arbitrator,
|
|
that party shall appoint their arbitrator within fourteen days, failing which the decision of the
|
|
single arbitrator appointed shall apply. If two arbitrators properly appointed shall not agree
|
|
they shall appoint
them to s
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
16 a), 16 b) and 16 c) are alternatives; delete whichever is not applicable. In the absence of
|
|
deletions, alternative 16 a) to apply.
|
|
|
17.
|
P & C: All details of these negotiations and any eventual sale shall be kept strictly private and
|
confidential among all parties concerned, except where required by statutory or requirements for stock
|
|
listed companies.
|
|
18.
|
On delivery the Sellers shall hand to Buyers a letter of undertaking stating that to the best of their
|
knowledge the Vessel under present Ownership is not blacklisted by the Arab boycott league in
|
|
Damascus and that she has not been infested by Gypsy Moth.
|
|
19.
|
The Vessel shall be delivered with her cargo holds clean swept, and free of cargo. However, Sellers
|
have the option to deliver the Vessel with her cargo holds as they are left by the Stevedores after
|
|
completion of discharge of cargo on board by paying Buyers a lump-sum amount of USD 4000 in lieu of
|
|
cargo holds cleaning.
|
|
[logo] OCEAN START SHIPPING LTD | ||
FOR THE SELLERS
/s/ illegible
|
FOR THE BUYERS
/s/ illegible
|
|
Name:
Title: Attorney-in-fact
|
Name:
Title: Attorney-in-fact |
MEMORANDUM OF AGREEMENT
Dated
:
5
th
September 2016
|
Norwegian Shipbroker's Association's Memorandum of Agreement for sale and purchase of ships. Adopted by The Baltic and international Maritime Council (BIMCO) in 1956.
Code-name
SALEFORM 1993
Revised 1966, 1983 and 1986/87.
|
1.
|
Purchase Price:
|
$ 4,150,000
|
|
|
|
2.
|
Deposit
|
|
|
||
As security for the correct fulfilment of this Agreement the
|
||
3.
|
Payment
|
|
|
||
The
|
||
|
||
4.
|
Inspections
|
|
a)*
|
The Buyers have inspected both the Vessel and Vessel's Classification records and have accepted both the Vessel and the Vessel's classification records. The Buyers have also-physically inspected the Vessel at/in Elefsis, Greece on 5
th
& 6
th
August, 2016.
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
4 a) and 4b) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 4a) to apply.
|
|
|
5.
|
Notices, time and place of delivery
|
|
|
a)
|
The Sellers shall keep the Buyers well informed of the Vessel's
|
|
|
|
|
|
The Buyers shall take delivery of the Vessel within 3 (three) business days (Saturdays/ Sundays/ holidays in England, USA, Malta, Cyprus and Greece excluded) after the Sellers have tendered to the Buyers a Notice of Readiness for Delivery. The Notice of Readiness for Delivery shall be submitted by the Sellers to the Buyers (any business day latest by 17:00 hrs Greek time) once the Vessel is ready for delivery. The Sellers shall not tender Notice of Readiness prior to completion of the underwater inspection unless Buyers have waived same.
|
b)
|
The Vessel shall be delivered and taken over charter free, cargo free with cargo holds clean swept, safely afloat at a safe berth buoy/port
|
|
Expected time of delivery: between 4
th
and 10
th
November 2016 in Sellers'option.
|
|
Date of cancelling (see
Clauses 5 c
),
6 b) (iii)
and
14
): 10
th
November 2016 in Buyers' option.
|
|
|
c)
|
If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the Vessel will not be ready for delivery by the cancelling date they may notify the Buyers in writing stating the date when they anticipate that the Vessel will be ready for delivery and propose a new cancelling date. Upon receipt of such notification the Buyers shall have the option of either cancelling this Agreement in accordance with
Clause 14
within
|
|
If this Agreement is maintained with the new cancelling date all other terms and conditions hereof including those contained in Clauses
5 a)
and
5 c
) shall remain unaltered and in full force and effect. Cancellation or failure to cancel shall be entirely without prejudice to any claim for damages the Buyers may have under
Clause 14
for the Vessel not being ready by the original cancelling date.
|
|
|
d)
|
Should the Vessel become an actual, constructive or compromised total loss before delivery the deposit together with interest earned shall be released immediately to the Buyers
|
|
whereafter this Agreement shall be null and void.
|
|
|
6.
|
Drydocking/Divers Inspection (NO DRYDOCKING SHALL APPLY)
|
|
|
a)**
|
|
|
|
b)**
|
(i)
The Vessel is to be delivered without drydocking. However, the Buyers shall have the right at their expense to arrange for an underwater inspection by a diver approved by the Vessel's Classification Society prior to the delivery of the Vessel. The Sellers shall at their cost make the Vessel available for such inpsection. The extent of the inspection and the conditions under which it is performed shall be to the satisfaction of the Classification Society. If the conditions at the port of delivery are unsuitable for such inspection, the Sellers shall make the Vessel available at a suitable alternative place near to the delivery port.
|
|
(ii)
If the rudder, propeller, bottom or other underwater parts below the deepest load line are found broken, damaged or defective so as to affect the Vessel's class, then unless repairs can be carried out afloat to the satisfaction of the Classification Society, the Sellers shall arrange for the Vessel to be drydocked at their expense for inspection by the Classification Society of the Vessel's underwater parts-below the deepest load line, the extent of the inspection being in accordance with the Classification Society's rules. If the rudder, propeller, bottom or other underwater parts below the deepest load line are found broken, damaged or defective so as to affect the Vessel's class, such defects shall be made good by the Sellers at their expense to the satisfaction of the Classification Society without condition/recommendation*. In such event the Sellers are to pay also for the cost of the underwater inspection and the Classification Society's attendance.
|
However if such recommendation does not have to be repaired immediately as per class instructions but can be postponed to the next scheduled drydocking (i.e that class accepts such postponement of repairs) then such damage to be settled in cash in lieu of repairs and amount shall be deducted from the purchase price. The cash compensation shall be based upon the average of 2 (two) reputable Greek and/or Romanian and/or Turkish shipyards' quotation, on obtained by each party. Once compensation has been agreed and deducted from the purchase price, the Buyers shall take delivery of the Vessel. It is understood by both parties that the amount of the monetary settlement is confined to direct repair cost only and does not include indirect cost such as dry-docking fee, general expenses, deviation cost, off hire and other costs whatsoever and that such amount of the monetary settlement is deducted from the Purchase Price.
Such Divers inspection to be carried out 3 days prior to delivery.
|
|
|
(iii)
If the Vessel is to be drydocked pursuant to Clause 6 b) (ii) and no suitable dry- docking facilities are available at the port of delivery, the Sellers shall take the Vessel to a port where suitable drydocking facilities are available, whether within or outside the delivery range as per Clause 5 b). Once drydocking has taken place the Sellers shall deliver the Vessel at a port within the delivery range as per Clause 5 b) which shall, for the purpose of this Clause, become the new port of delivery. In such event the cancelling date provided for in Clause 5 b) shall be extended by the additional time required for the drydocking and extra steaming, but limited to a maximum of 14 running days.
|
|
|
c)
|
If the Vessel is drydocked pursuant to Clause 6 a) or 6 b) above
|
|
|
|
(i)
the Classification Society may require survey of the tailshaft system, the extent of the survey being to the satisfaction of the Classification surveyor. If such survey is not required by the Classification Society, the Buyers shall have the right to require the tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey being in accordance with the Classification Society's rules for tailshaft survey and consistent with the current stage of the Vessel's survey cycle. The Buyers shall declare whether they require the tailshaft to be drawn and surveyed not later than by the completion of the Inspection by the Classification Society. The drawing and refitting of the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be condemned or found defective so as to affect the Vessel's class, those parts shall be renewed or made good at the Sellers' expense to the satisfaction of the Classification Society without
|
condition/recommendation*.
|
|
|
|
|
(ii)
the expenses relating to the survey of the tailshaft system shall be borne by the Buyers unless the Classification Society requires such survey to be carried out, in which case the Sellers shall pay these expenses. The Sellers shall also pay the expenses if the Buyers require the survey and parts of the system are condemned or found defective or broken so as to affect the Vessel's class*.
|
|
|
|
(iii)
the expenses in connection with putting the Vessel in and taking her out of drydock, including the drydock dues and the Classification Society's fees shall be paid by the Sellers if the Classification Society issues any condition/recommendation* as a result of the survey or if it requires survey of the tailshaft system. In all other cases the Buyers shall pay the aforesaid expenses, dues and fees.
|
|
|
|
(iv)
the Buyers' representative shall have the right to be present in the drydock, but
without interfering with the work or decisions of the Classification surveyor.
|
|
|
|
(v)
the Buyers shall have the right to have the underwater parts of the Vessel cleaned and painted at their risk and expense without interfering with the Sellers' or the Classification surveyors work, if any, and without affecting the Vessel's timely delivery. If, however, the Buyers' work in drydock is still in progress when the Sellers have Completed the work which the Sellers are required to do, the additional docking time needed to complete the Buyers' work shall be for the Buyers' risk and expense. In the event that the Buyers' work requires such additional time, the Sellers may upon completion of the Sellers' work tender Notice of Readiness for delivery whilst the Vessel is still in drydock and the Buyers shall be obliged to take delivery in accordance with Clause 3, whether the Vessel is in drydock or not and irrespective of Clause 5 b).
|
|
|
*
|
Notes, if any, in the surveyor's report which are accepted by the Classification Society without condition/recommendation are not to be taken into account.
|
|
|
**
|
6 a) and 6 b) are alternatives; delete whichever is not applicable. In the absence of deletions,
Alternative 6 a) to apply.
|
|
|
7.
|
Spares/bunkers, etc.
|
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on shore. All spare parts and spare equipment including spare tail-end shaft(s) and/or spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of inspection used or unused, whether on board or not shall become the Buyers' property, but spares on order are to be excluded. Forwarding charges, if any, shall be for the Buyers' account. The Sellers are not required to replace spare parts including spare tail-end shaft(s) and spare propeller(s)/propeller blade(s) which are taken out of spare and used as replacement prior to delivery, but the replaced items shall be the property of the Buyers. The radio installation and navigational equipment shall be included in the sale without extra payment if they are the property of the Sellers.
|
|
The Sellers have the right to take ashore crockery, plates, cutlery, linen and other articles bearing the Sellers' flag or name, provided they replace same with similar unmarked items. Library, forms, etc, exclusively for use in the Sellers' vessel(s), shall be excluded without compensation. Captain's, Officers' and Crew's personal belongings including the slop chest are to be excluded from the sale, as well as the following additional items (including items on hire): _____
|
|
Sellers confirmed No leased rented, hire equipment on board Vessel. Excluded from this sale are personal effects of Master, Officers and Crew including slop chest, log books, holy icons, ISM manuals, original certificates which must be surrendered to authorities and hired or third party's items, which shall be taken ashore by the Sellers upon or before delivery of the Vessel.
|
|
Notwithstanding the above the following items to be excluded from the Sale:
|
|
a) Oxygen / Acetylene /Freon Gas Bottles
b) All Log Books for Deck, Engine and radio with Buyer's right to photocopy available logs onboard at their own expense, but the Sellers shall provide the scanning copy of same.
c) All ISPS, ISM And quality documentation and correspondence.
d) Vessel's wireless e-mail system and server
e) Training video library, books.
f) Crew / Officers library / walport videos
g) Personal lap-top computers (Personal lap-top computers of crew. Total 13 pieces)
h) Personal cell phones (Personal cell phones of crew. Total 31 pieces)
i) Contents of Master's safe
|
j) Works of Art; Originals, copies, prints, statues
k) Certificates / documents to be returned to authorities (Need to have Vessel's original certificate of Registry to be returned back to the authorities)
|
|
|
|
Price to include everything belonging to vessel on board, including all navaids and wireless equipment.
|
|
The Buyers shall take over the remaining bunkers and unused lubricating oils in storage tanks and sealed drums and pay Sellers last purchase prices evidenced by the copy of invoices to be provided by the Sellers the current net market price (excluding barging expenses) at the port and date of delivery of the Vessel. Measurements of all ROB bunkers and lubes to be taken jointly by Sellers' and Buyers' representative 3 working days prior to delivery of the vessel.
|
|
Payment under this Clause shall be made at the same time and place and in the same currency as the Purchase Price.
|
|
8.
|
Documentation
|
|
|
The place of closing
:
either at Marousi, Greece or at Sellers' Bank in London, England in Sellers' option.
|
|
In exchange for payment of the Purchase Price the Sellers shall furnish the Buyers with reasonable delivery documentation necessary for the legal transfer of ownership and the registration of the Vessel under Buyers' new flag, which shall be mutually agreed and incorporated in the MOA as an Addendum.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At the time of delivery the Buyers and Sellers shall sign and deliver to each other a Protocol of Delivery and Acceptance confirming the date and time of delivery of the Vessel from the Sellers to the Buyers.
|
|
|
|
At the time of delivery the Sellers shall hand to the Buyers the classification certificate(s) as-well-as-all plans etc., which are on board the Vessel. Other certificates which are on board the Vessel shall also be handed over to the Buyers unless the Sellers are required to retain same, in which case the Buyers to have the right to take copies. Other technical documentation which may Be in the Sellers' possession shall be promptly forwarded to the Buyers at their expense, if they so
request. The Sellers may keep the Vessel's log books but the Buyers to have the right to take copies of same.
|
|
|
|
9.
|
Encumbrances
|
|
|
The Sellers warrant that the Vessel, at the time of delivery, is free from all charters, encumbrances, Taxes, mortgages, and maritime liens and/or any other debts whatsoever. The Sellers hereby undertake to indemnify the Buyers against all consequences of claims made against the Vessel which have
|
been incurred prior to the time of delivery.
|
|
|
|
10.
|
Taxes, etc.
|
|
|
Any taxes, fees and expenses in connection with the purchase and registration under the Buyers' flag shall be for the Buyers' account, whereas similar charges in connection with the closing of the Sellers' register shall be for the Sellers' account.
|
|
|
|
11.
|
Condition on delivery
|
|
|
The Vessel with everything belonging to her shall be at the Sellers' risk and expense until she is delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be delivered and taken
|
|
|
|
*
|
|
|
|
12.
|
Name/markings
|
|
|
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.
|
|
|
|
13.
|
Buyers' default
|
|
|
Should the deposit not be paid in accordance with
Clause 2
, the Sellers have the right to cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest. Should the Purchase Price not be paid in accordance with
Clause 3
, the Sellers have the right to cancel the Agreement, in which case the deposit together with interest earned shall be released to the Sellers. If the deposit does not cover their loss, the Sellers shall be entitled to claim further compensation for their losses and for all expenses incurred together with interest.
|
|
|
|
14.
|
Sellers' default
|
|
|
Should the Sellers fail to give Notice of Readiness in accordance with Clause
5 a
) or fail to be ready to validly complete a legal transfer by the date stipulated in
line 61
the Buyers shall have the option of cancelling this Agreement provided always that the Sellers shall be granted a maximum of 3 banking days after Notice of Readiness has been given to make arrangements for the documentation set out in
Clause 8
. If after Notice of Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not made physically ready again in every respect by the date stipulated in
line 61
and new Notice of Readiness given, the Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this Agreement the deposit together with interest earned shall be released to them immediately. Should the Sellers fail to give Notice of Readiness by the date stipulated in
line 61
or fail to be ready to validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers for their loss and for all expenses together with interest if their failure is due to proven negligence and whether or not the Buyers cancel this Agreement.
|
|
|
|
15.
|
Buyers' representatives
|
|
|
After this Agreement has been signed by both parties and the deposit has been lodged, the Buyers have the right to place up to four (4) representatives onboard strictly as observers for familiarization purposes only. Such representatives to board the Vessel at Elefsis, Greece before
|
delivery of the Vessel to the Buyers. Such buyers representatives to board at the Buyers' risk and account and shall always remain under the Master's command without any interference with the Vessel's operation and her schedule. Indemnity letters from each buyer's representatives shall be provided to the Sellers before the said representatives boarding. Said Buyers representatives to be allowed to use vessel's communication equipment and said charges will be settled by Buyers representatives on board and to the Master directly, but before delivery. Also, Buyers representatives to pay a victualing daily rate of usd 10.0 per rep.
|
|
|
|
16.
|
Arbitration
|
|
|
a)*
|
This Agreement shall be governed by and construed in accordance with English law and any dispute arising out of this Agreement shall be referred to arbitration in London in accordance with the Arbitration Acts 1950 and 1979 or any statutory modification or re-enactment thereof for the time being in force, one arbitrator being appointed by each party.
Arbitrators to be members of the London Maritime Arbitrators Association.
On the receipt by one party of the nomination in writing of the other party's arbitrator, that party shall appoint their arbitrator within fourteen days, failing which the decision of the single arbitrator appointed shall apply. If two arbitrators properly appointed shall not agree they shall appoint
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
16 a), 16 b) and 16 c) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 16 a) to apply.
|
|
|
17.
|
P & C
|
All details of these negotiations and any eventual sale shall be kept strictly private and confidential among all parties concerned, except where required by statutory or requirements for stock listed companies.
|
|
18.
|
On delivery the Sellers shall hand to Buyers a letter of undertaking stating that to the best of their knowledge the Vessel under present Ownership is not blacklisted by the Arab boycott league in Damascus and that she has not been infested by Gypsy Moth.
|
19.
|
The Vessel shall be delivered with her cargo holds clean swept, and free of cargo.
|
FOR THE SELLERS
/s/ Georgios A. Komolomanos
|
FOR THE BUYERS
/s/ Ilias Bezas
|
|
Name: Georgios A. Komolomanos
Title: Attorney-in-fact
|
Name: Ilias Bezas
Title: Attorney-in-fact |
DRYSHIPS INC.,
as Borrower
By: /s/Dimitris Dreliozis Name: Dimitris Dveliozis Title: Financial Controller |
|
SIFNOS SHAREHOLDERS INC.,
as Lender
By: /s/Savvas Tourmis Name: Savvas Tourmis Title: Attorney-in-fact |
For the Buyer
|
||||
By:
|
/s/
Charalampos Alivizatos
|
|||
Name:
|
Charalampos Alivizatos
|
|||
Title:
|
Attorney-in-fact
|
For the Seller
|
||||
By:
|
/s/
Dimitris Dreliozis
|
|||
Name:
|
Dimitrios Dreliozis
|
|||
Title:
|
Attorney-in-fact
|
For the Buyer's Guarantor
|
||||
By:
|
/s/
Charalampos Alivizatos
|
|||
Name:
|
Charalampos Alivizatos
|
|||
Title:
|
Attorney-in-fact
|
For the Seller's Guarantor
|
||||
By:
|
/s/
Dimitris Dreliozis
|
|||
Name:
|
Dimitrios Dreliozis
|
|||
Title:
|
Financial Controller
|
MEMORANDUM OF AGREEMENT
Dated:
27
th
September 2016
|
Norwegian Shipbroker's Association's Memorandum of Agreement for sale and purchase of ships. Adopted by The Baltic and international Maritime Council (BIMCO) in 1956.
Code-name
SALEFORM 1993
Revised 1966, 1983 and 1986/87.
|
1.
|
Purchase Price:
|
$ 3,720,00.00
|
|
|
|
2.
|
Deposit
|
|
|
||
As security for the correct fulfilment of this Agreement the
|
||
(
Agreement, the
Escrow Account is open, subjects have been lifted and import license granted by
MSA whichever the later
.
This deposit shall be placed with
Messrs. HFW (Holman Fenwick Willan) Singapore
|
||
and held by them
|
||
with
the
joint written instructions of the Sellers and the Buyers. Interest, if any, to be credited to the
|
||
Buyers. Any fee charged for holding the said deposit shall be borne equally by the Sellers and the Buyers.
|
||
Escrow Agent account details are as follows:
PLEASE ADVISE
|
||
|
||
3.
|
Payment
|
|
|
||
The
bunker/luboils etc shall be paid by T/T by import agent in full free of bank charges to Sellers'
|
nominated bank
|
|
on delivery of the Vessel, but not later than 3 banking days after the Vessel is in every respect
|
|
physically ready for delivery in accordance with the terms and conditions of this Agreement and
|
|
Notice of Readiness has been given in accordance with
Clause 5
.
|
|
|
|
4.
|
Inspections
|
a)*
|
The Buyers will appoint CCS to inspect the Vessel at Batam after the Vessel has been
reactivated. This inspection shall not be a subject to this deal. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.
|
Notices, time and place of delivery
|
|
|
a)
|
The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall
|
|
provide the Buyers with
30/20/15/10/7 as applicable, approximate notice of the expected time
and delivery,
and
3/2/1 definite
days notice.
|
|
|
|
|
|
|
|
Buyers shall take delivery of the Vessel within 3 (three) business days
(Saturdays/Sundays/ holidays in England and China excluded) after the Sellers have
tendered to the Buyers a Notice of Readiness for Delivery, the date of tendering such
notice being exclusive. The Notice of Readiness for Delivery shall be submitted by the
Sellers to the Buyers (any business day, day and night) once the Vessel is ready for
delivery. The Sellers shall not tender Notice of Readiness prior to completion of the
underwater inspection unless Buyers have waived same.
|
b)
|
The Vessel shall be delivered
berth buoy/port
anchorage
and
/or in Dry-Dock at/in
Qinghuangdao, China
|
|
|
|
Expected time of delivery
between 15
th
October 2016 and 15
th
November 2016 in Sellers'
option, but not earlier than 20 (twenty) days after completion of the CCS inspection.
|
|
Date of cancelling (see
Clauses 5 c
),
6 b) (iii)
and
14
):
15
th
November 2016 in
Buyers' option.
|
|
|
c)
|
If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the
|
|
Vessel will not be ready for delivery by the cancelling date they may notify the Buyers in
|
|
writing stating the date when they anticipate that the Vessel will be ready for delivery and
|
|
propose a new cancelling date. Upon receipt of such notification the Buyers shall have the
|
|
option of either cancelling this Agreement in accordance with
Clause 14
within
|
|
days of receipt of the notice or of accepting the new date as the new cancelling date. If the
|
|
Buyers have not declared their option within
|
|
notification or if the Buyers accept the new date, the date proposed in the Sellers' notification
|
|
shall be deemed to be the new cancelling date and shall be substituted for the cancelling
|
|
date stipulated in
line 61
.
|
|
If this Agreement is maintained with the new cancelling date all other terms and conditions
|
|
hereof including those contained in Clauses
5 a
) and
5 c
) shall remain unaltered and in full
|
|
force and effect. Cancellation or failure to cancel shall be entirely without prejudice to any
|
|
claim for damages the Buyers may have under
Clause 14
for the Vessel not being ready by
|
the original cancelling date.
|
|
|
|
d)
|
Should the Vessel become an actual, constructive or compromised total loss before delivery
|
|
the deposit together with interest earned shall be released immediately to the Buyers
|
|
whereafter this Agreement shall be null and void.
|
|
|
6.
|
Drydocking/Divers Inspection
|
|
|
a)**
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
b)**
|
However, the Buyers shall
|
|
have the right at their
risk and
expense to arrange for an
underwater parts of the Vessel
by
|
|
by the Vessel's Classification Society
in the presence of class surveyor with Buyers' right to attend without interference at the
video monitor or in any way with class surveyors work. Sellers will give at least 3 (three)
days' notice to Buyers of the place/time they intend to make the vessel available for such
inspection. Buyers' failure to appoint divers approved by class or attend underwater
inspection as per Sellers' notification will be deemed a waiver of their right to inspect the
Vessel's underwater parts. The Class surveyor to be appointed by the Sellers and all
expenses to be for the Buyers' account. if the conditions at the place where the Vessel is
made available for such inspection are unsuitable for such inspection, the Sellers shall at
their risk and expense make the Vessel available at a suitable alternative place. Thereafter
the Vessel shall be delivered at such alternative suitable place/port.
Should any damage affecting class be found by class surveyor in under-water parts and
class approves postponernent of repair of such damage, then the Sellers have the option
to repair same to class's satisfaction or compensate Buyers in cash which shall be
deducted from the purchase price at the time of closing. The cash compensation shall be
based upon the average of 2 (two) reputable Chinese shipyards' quotation, one obtained
by each party. It is understood by both parties that the amount of the monetary settlement
is confined to direct repair cost only and does not include indirect cost such as dry-
docking fee, general expenses, deviation cost, off hire and other costs whatsoever and
that such amount of the monetary settlement is deducted from the Purchase Price (for
labour and material costs only) at the time of delivery.
Should any damage affecting class be found by class surveyor in under-water parts and
class requires immediate repairs of such damage in a dry-dock and Sellers arrange that
the Vessel is dry-docked, the Buyers have the right to clean and paint the underwater
parts below the summer loadline at the Buyers' time, risk and account without interfering
with the Sellers' or vessel's class work and without affecting the smooth and timely
delivery of the Vessel. But in any case, the Tailshaft shall not be drawn unless requested
by the Class Surveyor and in case Vessel has to be drydocked.
If, however, the Buyers' work in dry-dock is still in progress when the Sellers have
completed their work, the Sellers have the right to tender the Notice of Readiness for
Delivery whilst the Vessel is still in dry-dock and the Buyers are obliged to take delivery of
the Vessel immediately after such Notice of Readiness tendered, whether the Vessel is in
dry-dock or not. Any extra time and cost for the additional dry-docking incurred by reason
of such Buyers' work shall be at the Buyers' risk and account.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
the underwater inspection and the Classification Society's attendance.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
**
|
|
|
|
|
|
7.
|
Spares/bunkers, etc.
|
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board and on
|
|
installations and navigational equipment.
|
|
The Vessel does not have a spare anchor, or a spare tail-end shaft, or a spare propeller.
|
|
Price to include everything belonging to the Vessel on board, including all navaids and wireless
equipment.
|
|
__All spare parts and spare equipment including spare tail-end shaft(s) and/or spare
propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of inspection used or
unused, whether on board or not shall become the Buyers' property, but spares on order are to be
excluded. Forwarding charges, if any, shall be for the Buyers' account. The Sellers are not required to
replace spare parts including spare tail-end shaft(s) and spare propeller(s)/propeller blade(s) which
are taken out of spare and used as replacement prior to delivery, but the replaced items shall be the
property of the Buyers. The radio installation and navigational equipment shall be included in the sale
without extra payment if they are the property of the Sellers. Unused stores and provisions shall be
included in the sale and be taken over by the Buyers without extra payment.
|
|
Excluded from this sale are personal effects of Master, Officers and Crew including slop chest,
log books, holy icons, ISM manuals, original certificates which must be surrendered to authorities
and hired or third party's items, which shall be taken ashore by the Sellers upon or before delivery
of the Vessel.
|
|
Notwithstanding the above the following items to be excluded from the Sale:
|
|
a) Oxygen / Acetylene /Freon Gas Bottles
b) All Log Books for Deck, Engine and radio with Buyer's right to photocopy available logs
onboard at their own expense, but the Sellers shall provide the scanning copy of same.
c) All ISPS, ISM And quality documentation and correspondence.
d) Vessel's wireless e-mail system and server
e) Training video library, books.
f) Crew / Officers library / walport videos
g) All Master's Slopchest / Bonded stores, all Master's and crew's personal belongings.
h) Personal lap-top computers (Personal lap-top computers of crew. Total 13 pieces)
i) Personal cell phones (Personal cell phones of crew. Total 31 pieces)
j) Contents of Master's safe
k) Works of Art; Originals, copies, prints, statues
1) Certificates / documents to be returned to authorities (Need to have Vessel's original certificate
of Registry to be returned back to the authorities)
m) All leased rented, hired equipment. (Sellers confirmed No leased rented, hire equipment on
board.)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Buyers to pay extra for remaining bunkers at platts prices prevailing at the port of delivery or
nearest port where platts prices are available (hereby Singapore platts price to be applied) one (1)
day before Vessel's delivery to the Buyers. Also Buyers to pay extra for Vessel's all types of
unused lubricants and greases that have not passed through Vessel's systems in designated
storage tanks and sealed drums/pails at Seller's last net prices evidenced by invoices/vouchers.
Sellers will use their reasonable commercial efforts to limit the quantity of bunker remaining
onboard at the time delivery as less as possible but in any case the separate each tank of MDO
and HFO on board at the time of delivery shall not exceed 30% of MDO and HFO tanks' capacity.
|
|
|
|
|
|
|
Payment under this Clause shall be made at the same time and place and in the same currency as
|
|
the Purchase Price.
|
|
|
|
8.
|
Documentation
|
|
|
The place of closing:
HFW Singapore
|
|
|
|
Documents to be mutually agreed between Buyers and Sellers and to be incorporated as an
Addendum to the MOA, but in any case failure to agree documentation shall not be a reason to
invalidate the MOA.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9.
|
Encumbrances
|
|
|
The Sellers warrant that the Vessel
shall be delivered
encumbrances,
mortgages, and maritime liens or any other debts whatsoever
at the time
of delivery
. The.
|
|
Sellers hereby undertake
to indemnify the Buyers against all consequences of claims made against the Vessel which have
|
|
been incurred prior to the time of delivery.
|
|
|
|
|
|
10.
|
Taxes, etc.
|
|
|
Any taxes, fees and expenses in connection with the purchase and registration under the Buyers' flag
|
|
shall be for the Buyers' account, whereas similar charges in connection with the closing of the Sellers'
|
|
register shall be for the Sellers' account.
|
|
|
|
11.
|
Condition on delivery
|
|
|
The vessel with everything belonging to her shall be at the Sellers' risk and expense until she is
|
|
|
have the right for the Vessel's last voyage prior to delivery to place up to 2 (two) representatives
on board the Vessel strictly as observers for familiarization purposes only. Such representatives to
board the Vessel before delivery of the Vessel to the Buyers at Batam, Indonesia, at the Buyers'
risk and account and shall always remain under the Master's command without any interference
with the Vessel's operation and her schedule. Indemnity letters from each of Buyer's
representatives shall be provided to the Sellers before the said representatives boarding. Said
Buyers representatives to be allowed to use Vessel's communication equipment and said charges
will be settled by Buyers representatives on board and to the Master directly, but before delivery.
Also, Buyers representatives to pay a victualing daily rate of usd 10.0 per rep.
|
|
The Buyers also have the right to send further 6 crews and 2 reps onboard for familiarisation
purposes during day time only when Vessel has arrived at the place of delivery and Sellers
tendered NOR. At the time of delivery / closing, other Vuyers' crews will be allowed to stay at
mess room.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16.
|
Arbitration
|
|
|
a)*
|
This Agreement shall be governed by and construed in accordance with English law and
|
|
any dispute arising out of this Agreement shall be referred to arbitration in London in
|
|
accordance with the Arbitration Acts 1950 and 1979 or any statutory modification or
|
|
re-enactment thereof for the time being in force, one arbitrator being appointed by each
|
|
party.
Arbitrators to be members of the London Maritime Arbitrators Association.
On the
receipt by one party of the nomination in writing of the other party's arbitrator,
|
|
that party shall appoint their arbitrator within fourteen days, failing which the decision of the
|
|
single arbitrator appointed shall apply. If two arbitrators properly appointed shall not agree
|
|
they shall appoint
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
16 a), 16 b) and 16 c) are alternatives; delete whichever is not applicable. In the absence of
|
|
deletions, alternative 16 a) to apply.
|
|
|
17.
|
P & C: All details of these negotiations and any eventual sale shall be kept strictly private and
|
confidential among all parties concerned, except where required by statutory or requirements for stock
|
|
listed companies.
|
|
18.
|
On delivery the Sellers shall hand to Buyers a letter of undertaking stating that to the best of their
|
knowledge the Vessel under present Ownership is not blacklisted by the Arab boycott league in
|
|
Damascus and that she has not been infested by Gypsy Moth.
|
|
19.
|
The Vessel shall be delivered with her cargo holds clean swept, and free of cargo. However, Sellers
|
have the option to deliver the Vessel with her cargo holds as they are left by the Stevedores after
|
|
completion of discharge of cargo on board by paying Buyers a lump-sum amount cf USD 4000 in lieu of
|
|
cargo holds cleaning.
|
|
20.
|
Sellers will appoint Penavico as their agent at the delivery port Qinghtuangdao. Sellers also have the
|
right to appoint their own sub - agent at delivery port to attend Owners' matters (agent to be nominated).
|
|
21.
|
Buyers shall use their best endeavors to obtain a technical import license by the MSA with outmost
|
dispatch.
|
|
22.
|
Subjects
|
a) This Sale / Purchase is subject to Sellers' BOD approval which to be lifted within 5 (five) Banking
|
|
Days from signing of this Agreement by both the Buyers and the Sellers.
|
|
b) Issuance of a technical import license by the MSA to be confirmed by the Buyers no later than
|
|
October 15th, 2016.
|
|
In case all subjects are not lifted then this sale shall be considered null and void.
|
|
FOR THE SELLERS
/s/
|
FOR THE BUYERS
/s/
|
|
Name:
Title: Attorney-in-fact
|
Name:
Title: |
|
FOR THE IMPORT AGENT
/s/
|
||
Name:
Title: |
MEMORANDUM OF AGREEMENT
Dated:
8 October 2016
|
Norwegian Shipbroker's Association's Memorandum of Agreementfor sale and purchase of ships. Adopted by The Baltic and international Maritime Council (BIMCO) in 1956.
Code-name
SALEFORM 1993
Revised 1966, 1983 and 1986/87.
|
1.
|
Purchase Price:
|
US$ 6,700,000. – (United States Dollars Six Million Seven Hundred Thousand Only)
|
|
|
|
2.
|
Deposit
|
|
|
||
As security for the correct fulfilment of this Agreement the Buyers import agent shall pay a deposit of
|
||
3.
|
Payment
|
|
|
||
The
|
||
4.
|
Inspections
|
|
a)*
|
The Buyers have inspected and accepted both the Vessel and Vessel's Classification records. The Buyers have
|
2016.
|
|
|
|
|
|
*
|
4 a) and 4b) are alternatives; delete whichever is not applicable. In the absence of deletions, alternative 4a) to apply.
|
|
|
5.
|
Notices, time and place of delivery
|
|
|
a)
|
The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall provide the Buyers with 25
/
20/15//10/7, approximate days notice of the expected time of delivery, and
3/2/1
definite
days notice of the estimated time of arrival at the intended place of
|
|
|
|
|
|
|
|
The Buyers shall take delivery of the Vessel within 3 (three) banking days (Saturdays/Sundays/holidays in England, Germany, U.S.A., Malta, China and Greece excluded) after the Sellers have tendered to the Buyers a Notice of Readiness for Delivery, the date of tendering such Notice being exclusive. The Notice of Readiness for Delivery shall be submitted by the Sellers to the Buyers (any business day, day and night) once the Vessel is ready for delivery. The Sellers shall not tender Notice of Readiness prior to completion of the underwater inspection unless Buyers have waived same.
|
Sellers to keep Buyers closely informed of the port of delivery which in any case Sellers to do their best to declare such port not latest than 15 days prior delivery. However, Sellers to declare latest along with the 15 days notice at least the country of delivery.
|
|
b)
|
The Vessel shall be delivered
|
|
Expected time of delivery:
1
st
November and 15
th
December 2016 in Sellers'option.
|
|
Date of cancelling (see
Clauses 5 c
),
6 b) (iii)
and
14
):
15
th
December 2016 in Buyers' option.
|
|
|
c)
|
If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the Vessel will not be ready for delivery by the cancelling date they may notify the Buyers in writing stating the date when they anticipate that the Vessel will be ready for delivery and propose a new cancelling date. Upon receipt of such notification the Buyers shall have the option of either cancelling this Agreement in accordance with
Clause 14
within
|
|
|
|
|
|
|
|
If this Agreement is maintained with the new cancelling date all other terms and conditions hereof including those contained in Clauses
5 a
) and
5 c
) shall remain unaltered and in full
|
force and effect. Cancellation or failure to cancel shall be entirely without prejudice to any claim for damages the Buyers may have under
Clause 14
for the Vessel not being ready bythe original cancelling date.
|
|
|
d)
|
Should the Vessel become an actual, constructive or compromised total loss before delivery the deposit together with interest earned shall be released immediately to the Buyers whereafter this Agreement shall be null and void.
|
|
|
6.
|
Drydocking/Divers Inspection
|
|
|
|
|
|
|
b)**
|
(
i)
|
|
|
Should any damage affecting class be found by class surveyor in under-water parts and class approves postmonment of repair of such damage until Vessel's next periodical drydock or survey, then the Sellers have the option to repair same to class's satisfaction or compensate Buyers in cash which shall be deducted from the purchase price at the time of closing.The cash compensation shall be based upon the average of 2 (two) reputable Chinese shipyards' quotation, one obtained by each party. It is understood by both parties that the amount of the monetary settlement is confined to direct repair cost only and does not include indirect cost such as dry-doc king fee,general expenses, deviation cost, off hire and other costs whatsoeve r and that such amount of the monetary settlement is deducted from the Purchase Price (for labour and material costs only) at the time of delivery.
|
|
Should any damage affecting class be found by class surveyor in under-water parts and class requires immediate repairs of such damage in a dry-dock and Sellers arrange that the Vessel is dry-docked prior delivery, in which case cancelling date shall be extended by the corresponding number of days lost due to such repair including drydocking, waiting time for drydocking, deviation etc. but in any case limited to a maximum of 30 running days which shall be the new cancelling date, the Buyers have the right to clean and paint the underwater parts below the summer loadline at the Buyers' time, risk and account without interfering with the Sellers' or Vessel's class work and without affecting the smooth and timely delivery of the Vessel. But in any case, the Tailshaft shall not be drawn unless requested by the class surveyor and in any case has to be DryDocked.
|
|
If, however, the Buyers' work in dry-dock is still in progress when the Sellers have completed their work, the Sellers have the right to tender the Notice of Readiness for Delivery whilst the Vessel is still in dry-dock and the Buyers are obliged to take delivery of the Vessel after such Notice of Readiness tendered as per Clause 5 above, whether the Vessel is in dry-dock or not. Any extra time and cost for the additional dry -docking incurred by reason of such Buyers' work shall be at the Buyers' risk ad account, however the undocking cost is always for the Sellers' account.
|
The class shall be the sole arbitrator as to whether underwater damage, if any, affects Vessel's class.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7.
|
Spares/bunkers, etc.
|
|
|
The Sellers shall deliver the Vessel to the Buyers with everything belonging to her at the time of inspection on board and on
|
|
The Vessel does not have a spare anchor, or spare tail-end shaft, or a spare propeller.
|
|
Excluded from this sale are personal effects of Master, Officers and Crew including slop chest, log books, holy icons, ISM manuals, original certificates which must be surrendered to authorities and hired or third party's items,which shall be taken ashore by the Sellers upon or before delivery of the Vessel.
|
|
Notwithstanding the above, the following items to be excluded from the sale:
|
|
a)
Oxygen / Acetylene / Freon Gas Bottles
b)
All Log Books for Deck, Engine and radio with Buyers' right to photocopy available logs onboard at their own expense, but the Seifers shall provide the scanning copy of same
c)
All SPS, ISM and quality documentation and correspondance
d)
Training video library, books
e)
Crew/Officers library
/
walport videos
f)
AIl Master's Slopchest
/
Bonded stores, all Master's and crew's personal belongings
g)
Personal lap-top computers of crew
h)
Personal cell phones of crew
i)
Contents of Master's safe
j)
Works of Art; Originals, copies, prints, statues
k)
Certificates
/
documents to be returned to authorities (Need to have Vessels original certificate of Registry to be returned back to the authorities)
l)
All leased rented, hired equipment .(Sellers confirmed no leased rented, hired equipment on board)
|
|
Price to include everything belonging to the Vessel on board, including all navaids and wireless equipment.
|
|
|
|
|
|
The Buyers shall take over the for remaining bunkers at the time of delivery and pay extra as per Singapore Platts prices 1 (one) day prior to Vessel's delivery. Also Buyers to pay extra for Vessel's all types of
|
|
The quantities of the bunkers and the unused lubricating oils and greases remainig on board on delivery shall be agreed with a joint survey between the Buyers and the Sellers and their representatives not later than 2 (two) days prior to the delivery with an agreed allowance for
|
consumption up to physical delivery.
|
|
|
|
8.
|
Documentation
|
|
|
The place of closing:
either at Marousi, Greece or at Sellers' Bank in London, England in Sellers' option, declarable latest along with the 15 days notice.
|
|
The parties undertake to agree on the documents that each is to provide the other for closing and/or registration purposes, as soon as reasonably practicable and to include the agreed list of documents as an Addendum to this Agreement. However, agreement of such Addendum shall not delay signing of this Agreement, lifting of subjects and payment of Deposit as per Clause 2 herein above.
|
|
As per custom practice,drafts/samples of the above documents to the extent available to be exchanged by fax/email at least 10 (ten) working days prior to closing for comments and verification , in order to ensure a smooth closing.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At the time of delivery the Buyers and Sellers shall sign and deliver to each other a Protocol of Delivery and Acceptance confirming the date and time of delivery of the Vessel from the Sellers to the Buyers.
|
|
|
|
|
|
|
|
9.
|
Encumbrances
|
|
|
The Sellers warrant that the Vessel
|
|
|
|
10.
|
Taxes, etc.
|
|
|
Any taxes, fees and expenses in connection with the purchase and registration under the Buyers' flag
|
shall be for the Buyers' account, whereas similar charges in connection with the closing of the Sellers' register shall be for the Sellers' account.
|
|
|
|
11.
|
Condition on delivery
|
|
|
The Vessel with everything belonging to her shall be at the Sellers' risk and expense until she is delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be delivered and taken
|
|
All plans, drawings and instruction manuals (excludig ISM manuals) which are on board shall be delivered
to
the Buyers' Master as they are upon delivery of the Vessel.
|
|
All remaining plans, drawings and instruction manuals in the Sellers' possession shall be forwarded to the Buyers' main office after delivery. Forwarding charges, if any, shall be for the Buyers' account.
|
|
Logbooks shall be retained by the Sellers. However, the Buyers have the right to take photocopies of the available logbooks onboard before delivery at the Buyers' cost.
|
|
"Inspection" in this Clause 11, shall mean the Buyers' inspection according to Clause
4 a
) or
4 b
), if applicable, or the Buyers' inspection prior to the signing of this Agreement. If the Vessel is taken over without inspection, the date of this Agreement shall be the relevant date.
|
|
*
|
Notes, if any, in the surveyor's report which are accepted by the Classification Society without condition/recommendation are not to be taken into account.
|
|
|
12.
|
Name / markings
|
|
|
Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel markings.
|
|
|
|
13.
|
Buyers' default
|
|
|
Should the deposit not be paid in accordance with
Clause 2
, the Sellers have the right to cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest. Should the Purchase Price not be paid in accordance with
Clause 3
, the Sellers have the right to cancel the Agreement, in which case the deposit together with interest earned shall be released to the Sellers. If the deposit does not cover their loss, the Sellers shall be entitled to claim further compensation for their losses and for all expenses incurred together with interest.
|
|
|
|
14.
|
Sellers' default
|
|
|
Should the Sellers fail to give Notice of Readiness in accordance with Clause
5 a
) or fail to be ready to validly complete a legal transfer by the date stipulated in
line 61
the Buyers shall have the option of cancelling this Agreement provided always that the Sellers shall be granted a maximum of 3 banking days after Notice of Readiness has been given to make arrangements for the documentation set out in
Clause 8
. If after Notice of Readiness has been given but before the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not made physically ready again in every respect by the date stipulated in
line 61
and new Notice of Readiness given, the Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this Agreement the deposit together with interest earned shall be released to them immediately.
Should the Sellers fail to give Notice of Readiness by the date stipulated in
line 61
or fail to be ready to validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers for their loss and for all expenses together with interest if their failure is due to proven negligence and whether or not the Buyers cancel this Agreement.
|
|
|
|
15.
|
Buyers' representatives
|
|
|
After signing of the MOA and 15% deposit has been lodged into the Escrow Account
|
have the right to place up to 2 (two) representatives on board strictly as observers for familiarization purposes only. Such representatives to board the Vessel at the Buyers' risk and account and shall always remain under the Master's command without interference with the Vessel's operation and her schedule. Indemnityletters from eac h of Buyers' representatives shall be provided to the Sellers before the said representatives boarding. Said Buyers' representatives to be allowed to use Vessel's communication equipment and said charges will be settled by Buyers representatives on board and to the Master directly, but before delivery. Also, Buyers representatives to pay a victualing daily rate of USD 10.- per representative.
|
|
|
|
16.
|
Arbitration
|
|
|
a)*
|
This Agreement shall be governed by and construed in accordance with English law and any dispute arising out of this Agreement shall be referred to arbitration in London in accordance with the Arbitration Acts 1950 and 1979 or any statutory modification or re-enactment thereof for the time being in force, one arbitrator being appointed by each party. Arbitrators to be members of the London Maritime Arbitrators Association. On the receipt by one party of the nomination in writing of the other party's arbitrator, that party shall appoint their arbitrator within fourteen days, failing which the decision of the single arbitrator appointed shall apply. If two arbitrators properly appointed shall not agree they shall appoint
|
|
|
|
|
|
|
|
|
|
|
|
|
17.
|
P & C
|
All details of these negotiations and any eventual sale shall be kept strictly private and confidential among all parties concerned, except where required by statutory or requirements for stock listed companies.
|
|
18.
|
On delivery the Sellers shall hand to Buyers a letter of undertaking stating that to the best of their knowledge the Vessel under present Ownership is not blacklisted by the Arab boycott league in Damascus, has not traded through any U.N. sanctioned countriesa that she has not been infested by Gypsy Moth.
|
19.
|
The Vessel shall be delivered with her cargo holds clean swept, and free of cargo. However, Sellers have the option to deliver the Vessel with her cargo holds as they are left by stevedores after completion of discharge of cargo on board by paying Buyers a lump-sum amount of USD 4,000 in lieu of cargo holds cleaning.
|
20.
|
This Sale / Purchase is subject to the Sellers' BOD approval which to be lifted within 5 (five) Banking Days from signing of this Agreement by both the Buyers and the Sellers.
|
For the Sellers
/s/ Sofia Manola
|
For the Buyers
/s/ Nikos Diamantaras
|
|
Name: Sofia Manola
Title: Attorney-in-fact
|
Name: Nikos Diamantaras
Title: Attorney-in-fact |
For the Buyer
By:
/s/ Charalampos Alivizatos
Name: Charalampos Alivizatos Title: Attorney-in-fact
For the Seller
By:
/s/ Dimitrios Dreliozis
Name: Dimitrios Dreliozis Title: Attorney-in-fact
For the Buyers' Guarantor
By:
/s/ Charalampos Alivizatos
Name: Charalampos Alivizatos Title: Attorney-in-fact
For the Sellers' Gurantor
By:
/s/ Dimitrios Dreliozis
Name: Dimitrios Dreliozis Title: Attorney-in-fact |
For the Buyer
By:
/s/ Charalampos Alivizatos
Name: Charalampos Alivizatos Title: Attorney-in-fact
For the Seller
By:
/s/ Dimitrios Dreliozis
Name: Dimitrios Dreliozis Title: Attorney-in-fact
For the Buyers' Guarantor
By:
/s/ Charalampos Alivizatos
Name: Charalampos Alivizatos Title: Attorney-in-fact
For the Sellers' Gurantor
By:
/s/ Dimitrios Dreliozis
Name: Dimitrios Dreliozis Title: Attorney-in-fact |
For the Buyer
By:
/s/ Charalampos Alivizatos
Name: Charalampos Alivizatos Title: Attorney-in-fact
For the Seller
By:
/s/ Dimitris Dreliozis
Name: Dimitrios Dreliozis Title: Attorney-in-fact
For the Buyers Guarantor
By:
/s/ Charalampos Alivizatos
Name: Charalampos Alivizatos Title: Attorney-in-fact
For the Sellers Gurantor
By:
/s/ Dimitris Dreliozis
Name: Dimitrios Dreliozis Title: Attorney-in-fact |
a) |
THAT the amount payable as Working Capital pursuant to the terms of the SPA from the Buyer to the Seller is hereby waived.
|
b) |
THAT the Buyer is hereby released from its obligation to pay the Working Capital to the Seller under the SPA and that the Seller and the Buyer have no claims against each other arising under the terms of the SPA.
|
|
For the Buyer
|
|
|
|
|
|
|
|
|
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
|
|
|
|
|
|
For the Seller
|
|
|
|
|
|
|
|
|
By:
|
/s/ Dimitris Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
|
|
|
|
|
|
For the Buyers' Guarantor
|
|
|
|
|
|
|
|
|
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
|
|
|
|
|
|
For the Sellers' Guarantor
|
|
|
|
|
|
|
|
|
By:
|
/s/ Dimitris Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
|
|
a) |
THAT the amount payable as Working Capital pursuant to the terms of the SPA from the Buyer to the Seller is hereby waived.
|
b) |
THAT the Buyer is hereby released from its obligation to pay the Working Capital to the Seller under the SPA and that the Seller and the Buyer have no claims against each other arising under the terms of the SPA.
|
For the Buyer
|
||
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
For the Seller
|
||
By:
|
/s/ Dimitrios Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
For the Buyers' Guarantor
|
||
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
For the Sellers' Guarantor
|
||
By:
|
/s/ Dimitrios Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
a) |
THAT the amount payable as Working Capital pursuant to the terms of the SPA from the Buyer to the Seller is hereby waived,
|
b) |
THAT the Buyer is hereby released from its obligation to pay the Working Capital to the Seller under the SPA and that the Seller and the Buyer have no claims against each other arising under the terms of the SPA.
|
|
For the Buyer
|
|
|
|
|
|
|
|
|
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
|
|
|
|
|
|
For the Seller
|
|
|
|
|
|
|
|
|
By:
|
/s/ Dimitrios Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
|
|
|
|
|
|
For the Buyers' Guarantor
|
|
|
|
|
|
|
|
|
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
|
|
|
|
|
|
For the Sellers' Guarantor
|
|
|
|
|
|
|
|
|
By:
|
/s/ Dimitrios Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
|
|
a) |
THAT the amount payable as Working Capital pursuant to the terms of the SPA from the Buyer to the Seller is hereby waived.
|
b) |
THAT the Buyer is hereby released from its obligation to pay the Working Capital to the Seller under the SPA and that the Seller and the Buyer have no claims against each other arising under the terms of the SPA.
|
For the Buyer
|
||
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
For the Seller
|
||
By:
|
/s/ Dimitrios Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
For the Buyers' Guarantor
|
||
By:
|
/s/ Charalampos Alivizatos
|
|
Name:
|
Charalampos Alivizatos
|
|
Title:
|
Attorney-in-fact
|
|
For the Sellers' Guarantor
|
||
By:
|
/s/ Dimitrios Dreliozis
|
|
Name:
|
Dimitrios Dreliozis
|
|
Title:
|
Attorney-in-fact
|
|
DRYSHIPS INC.
, as Borrower
By:
/s/ Dimitris Dreliozis
Name: Dimitris Dreliozis Title: Financial Controller |
|
SIFNOS SHAREHOLDERS INC.
, as Lender
By:
/s/ Savvas Tournis
Name: Savvas Tournis Title: Attorney-in-fact |
$75,000,000 |
Dat
ed: ________, 201__
|
DRYSHIPS INC.
By: Name: Its: |
Date
|
Principal Amount of Loans
|
Interest Period and
Interest Rate with Respect Thereto |
Principal Amount of Loans Repaid
|
Unpaid Principal
Amount of Loans |
Notation
Made By |
Clause
|
Page
|
|
1
|
Interpretation
|
2
|
2
|
Undertakings
|
2
|
3
|
Lender's Agreement
|
3
|
4
|
Representations and Warranties
|
4
|
5
|
Confidentiality and Non-Disclosure
|
5
|
6
|
Reservation of Rights
|
5
|
7
|
Forbearance
|
5
|
8
|
Incorporation of Loan Agreement Terms
|
6
|
9
|
Event of Default
|
6
|
10
|
Governing Law and Jurisdiction
|
6
|
Execution Page
|
7
|
(1) |
AEGEAN TRADERS INC.,
a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "
Borrower
"
);
|
(2) |
DRYSHIPS INC.,
a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "
Corporate Guarantor
"
);
|
(3) |
PORTIGON AG, LONDON BRANCH (formerly known as WEST LB AG, London Branch),
acting through its office at Woolgate Exchange, 25 Basinghall Street, London EC2V 5HA, England (the "
Lender
"
).
|
(A) |
By a loan agreement dated 20 June 2008 (as amended and supplemented on 8 October 2009 and as amended and restated on 18 January 2010 and as further amended on 12 November 2014, the "
Loan Agreement
"
)
and made between, amongst others, the Borrower and the Lender, the Lender has made available to the Borrower a secured term loan facility of (originally) up to US$103,200,000.
|
(B) |
By a master agreement dated 20 June 2008 (the "
Master Agreement
"
)
on the 1992 ISDA Multicurrency Crossborder form and made between (i) the Corporate Guarantor and (ii) the Lender, the Lender agreed to enter into Transactions (as such term is defined in the Loan Agreement) with the Corporate Guarantor from time to time to hedge the Borrower's exposure under the Loan Agreement to interest rate fluctuations.
|
(C) |
The Lender advanced to the Borrower the total amount of US$103,200,000 and, as at the date of this Agreement, the amount of the Loan outstanding is US$18,565,801,15, comprised of US$18,250,000 by way of outstanding principal and accrued interest of US$315,801.15 (as of 18 November 2016).
|
(D) |
The Lender has consented to the sale of m.v. "SORREN ICY (the "
Ship
"
)
and to release Its mortgage over the Ship even though the market value and consequently the sale proceeds are significantly less than the principal outstanding amount of the Loan.
|
(i) |
The Borrower shall remain fully liable for repayment of the Loan as reduced in accordance with Clause 3.2 of this Agreement;
|
(ii) |
the Corporate Guarantor shall remain fully liable under the Corporate Guarantee; and
|
(iii) |
all other terms and conditions contained in this Agreement.
|
(F) |
The release of the Borrower and the Corporate Guarantor from their respective obligations under the Finance Documents will occur pursuant to the terms and conditions contained in this Agreement.
|
(a) |
a Security Party breaches any term, provision, undertaking or covenant of this Agreement;
|
(b) |
any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
(i) |
a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Borrower or the Corporate Guarantor; or
|
(ii) |
the enforcement of any Security Interest over any assets of the Borrower or the Corporate Guarantor; or
|
(iii) |
any analogous procedure or step is taken in any jurisdiction;
|
(c) |
any Instalment falling due under Clause 3.2 is not paid on its due date unless its failure to pay is caused by an administrative or technical error; and
|
(d) |
any Security Interest securing any Financial Indebtedness of a Relevant Person is enforced or any creditor accelerates or enforces its rights pursuant to a provision having an equivalent effect to clause 18.2 of the Loan Agreement; and
|
(a) |
to pay on the date of this Agreement the Upfront Amount to be applied first against the Balloon Instalment and thereafter against the outstanding repayment instalments of the Loan (as defined in the Loan Agreement);
|
(b) |
to pay all costs associated with the release of the Mortgage in respect of the Ship and any legal costs incurred by the Lender in connection therewith and in connection with the arrangements set out in and the negotiation of this Agreement; and
|
(c) |
on the date of completion of the sale of the Ship, the Borrower will confirm in writing (in a form in all respects acceptable to the Lender) that there are no due and unpaid Earnings or outstanding claims in connection with the Earnings or Insurances of the Ship and that no claims in connection with Earnings or Insurances (in connection with a previous employment or otherwise) are anticipated in connection with the Ship after its delivery to the Buyer.
|
1
|
2
|
3
|
4
|
5
|
Date
|
Instalment
($)
|
Deficiency amount on each Instalment Payment Date
($)
|
Total reduction of Loan on each Instalment Payment Date
($)
|
Loan ($) after payment of each Instalment stated in column 2
($)
|
Closing Date
|
1,500,000
|
3,585,343.35
|
5,085,343.35
|
6,780,457.80
|
The date falling 3 months after the Closing Date
|
666,666.67
|
1,593,485.94
|
2,260,152.61
|
4,520,305.19
|
The date falling 6 months after the Closing Date
|
666,666.67
|
1,593,485.94
|
2,260,152.61
|
2,260,152.58
|
The date falling 9 months after the Closing Date
|
666,666.67
|
1,593,485.92
|
2,260,152.58
|
0.00
|
(a) |
there shall be a full and final settlement of any claims or amounts whatsoever due to the Lender from the Borrower, the Corporate Guarantor or any other Security Party under or in connection with the Loan Agreement relating to the repayment of the Loan;
|
(b) |
the Lender will irrevocably and unconditionally release and discharge the Borrower from its obligation to repay the Loan and any other obligations under or in connection with the Loan Agreement (save for those referred to in clauses 19 and 20 of the Loan Agreement which shall survive the execution of this Agreement);
|
(c) |
the Lender will release the Corporate Guarantor from all its obligations under the Corporate Guarantee (save for the obligations to indemnify the Lender in connection to the Borrower's obligations referred to in clauses 19 and 20 of the Loan Agreement which shall survive the execution of this Agreement);
|
(d) |
the Lender will re-assign to the Borrower all Security Interests of any kind created by the Finance Documents to which it is a party;
|
(e) |
the Lender will irrevocably and unconditionally release and discharge the Borrower from all its obligations under or in connection with any Finance Document to which it is a party; and
|
(f) |
the Lender shall re-assign to the Approved Manager all Security Interests (if any) created by the Approved Manager's Undertaking.
|
4.1 |
The Borrower and the Corporate Guarantor represent and warrant to the Lender as follows:
|
(a) |
the Borrower and the Corporate Guarantor have taken all corporate action and obtained all consents necessary for them to execute this Agreement and to make all payments contemplated by, and to comply with, this Agreement;
|
(b) |
all consents referred to in Clause 4.2 remain in force and nothing has occurred which makes it liable for revocation;
|
(c) |
the execution by the Borrower and the Corporate Guarantor of this Agreement constitutes the Borrower's and the Corporate Guarantor's legal, valid and binding obligations
|
(i) |
law or regulation; or
|
(ii) | the constitutional documents of the Borrower or the Corporate Guarantor; or |
(iii) |
any contractual or other obligation or restriction which is binding on the Borrower or the Corporate Guarantor or any of their assets; and
|
(d) |
no claims against any insurers or any charterer in respect of the Ship remain pending or unpaid.
|
4.2 |
The Borrower and the Corporate Guarantor acknowledge and hereby irrevocably and unconditionally confirm to the Lender that they have no claim whatsoever against the Lender in respect of, or arising out of, the Loan Agreement and the Finance Documents.
|
6.1 |
The terms of this Agreement shall be without prejudice to the Lender's rights under the Loan Agreement and Finance Documents which rights the Lender fully reserves until due performance of all of the terms of this Agreement and any forbearance or delay by the Lender in exercising such rights shall in no way amount to, or be construed as a waiver by, the Lender of such rights.
|
6.2 |
For the avoidance of any doubt, each of the Borrower and the Corporate Guarantor shall continue to remain liable in respect of all its obligations and liabilities under or in connection with the Loan Agreement and the Corporate Guarantee (subject to Clause 7 of this Agreement) until it is released pursuant to Clause 0.
|
7.1 |
Subject to the compliance with the terms and conditions contained in this Agreement including without limitation those referred to in Clause 2.1 and provided that the representations set out in Clause 4 are and remain true in all respects, the Lender confirms that during the Forbearance Period it shall not:
|
(a) |
declare prematurely due and payable or otherwise seek to accelerate payment of all or any Financial Indebtedness or any part of the Loan; or
|
(b) |
exercise or enforce any right under any Finance Document.
|
7.2 |
For the avoidance of doubt, on the occurrence of a Termination Event, the agreement of the Lender to the matters set out in this Clause 7 shall be revoked and the terms of this Agreement shall be terminated and the amount of the Loan as of the date of termination shall be the amount of the Loan at that date as reduced in accordance with Clause 3.2 of this Agreement.
|
7.3 |
Each Security Party hereby agrees with the Lender that, notwithstanding the terms of this Clause 7.1, the provisions of the Loan Agreement and the Finance Documents shall be, and are hereby, re-affirmed and remain in full force and effect.
|
7.4 |
This Agreement shall constitute a Finance Document for all purposes under the Loan Agreement and the other Finance Documents.
|
8 |
INCORPORATION
OF LOAN AGREEMENT TERMS
|
8.1 |
The provisions of clauses 19.1, 19.2 and 27 of the Loan Agreement shall apply (with all logical modifications) to this Agreement as if the references therein to "this Agreement" or "a/the Finance Document/s" were references to this Agreement.
|
9 |
EVENT OF DEFAULT
|
10 |
GOVERNING LAW AND JURISDICTION
|
BORROWER
|
||||
EXECUTED
and
DELIVERED
as a
DEED
by
AEGEAN TRADERS INC.
acting by Savvas Tournis
its duly authorised
attorney-in-fact in the presence of:
|
)
)
)
)
)
|
/s/ Savvas Tournis
|
||
EVGENIA TH. VOULIKA
Attorney-at-Law
52 Ag. Konstantinou Street – 151 24 Marousi
Athens, Greece
Tel: +30 210 6140580
|
/s/ Evgenia Th. Voulika | |||
CORPORATE GUARANTOR
|
||||
EXECUTED
and
DELIVERED
as a
DEED
by
DRYSHIPS INC.
acting by Savvas Tournis
its duly authorised
attorney-in-fact in the presence of:
|
)
)
)
)
)
|
/s/ Savvas Tournis
|
||
EVGENIA TH. VOULIKA
Attorney-at-Law
52 Ag. Konstantinou Street – 151 24 Marousi
Athens, Greece
Tel: +30 210 6140580
|
/s/ Evgenia Th. Voulika | |||
LENDER
|
||||
EXECUTED
and
DELIVERED
as a
DEED
by
EAA PORTFOLIO ADVISERS GMBH
for and on behalf of PORTIGON AG,
LONDON BRANCH
(formerly known as WEST LB AG,
London Branch)
acting by
its duly authorised
attorney-in-fact in the presence of:
|
)
)
)
)
)
)
)
)
)
|
/s/ ILLEGIBLE | ||
DATED
|
30 November 2016
|
(1) |
DRYSHIPS INC
.
(as Borrower) |
(2) |
ADVICE INVESTMENTS S
.
A
.
(as Purchaser) |
(3) |
HSH NORDBANK AG
(as Assigning Lender) |
(4) |
HSH NORDBANK AG
(as Swap Bank) |
(5) |
HSH NORDBANK AG
(as Lead Bookrunner) |
(6) |
HSH NORDBANK AG
(as Agent) |
(7) |
HSH NORDBANK AG
(as Security Trustee) |
(1) |
DRYSHIPS INC
.
,
a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH 96960 ("
Borrower
");
|
(2) |
ADVICE INVESTMENTS
S
.
A
.
,
a corporation incorporated in the Republic of Liberia whose registered office is at 80 Broad Street, Monrovia, Liberia ("
Purchaser
");
|
(3) |
HSH NORDBANK AG
,
acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as a lender, "
Assigning Lender
");
|
(4) |
HSH NORDBANK AG,
acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as a swap bank, "
Swap Bank
");
|
(5) |
HSH NORDBANK AG
,
acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as lead bookrunner, "
Lead Bookrunner
");
|
(6) |
HSH NORDBANK AG
,
acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as agent, "
Agent
");
and
|
(7) |
HSH NORDBANK AG
,
acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as security trustee, "
Security Trustee
")
,
|
(A) |
By a loan agreement dated 31 March 2006 between, inter alia, (i) the Borrower, as borrower, (ii) the Assigning Lender and others, as lenders (together in such capacity, the "
Junior Lenders
")
,
(iii) the Swap Bank and others, as swap bank, (iv) the Agent, as agent and (v) the Security Trustee, as security trustee, as amended, restated, novated and/or (as the case may be) supplemented by (i) a supplemental letter dated 15 May 2006 between the Borrower and the Agent; (ii) an amending and restating agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) a supplemental agreement dated 27 February 2008 among, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (iv) a supplemental letter dated 23 April 2008 between the Borrower and the Agent; (v) a supplemental agreement dated 17 November 2009 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (vi) a supplemental letter dated 29 September 2010 between the Borrower and the Agent; (vii) a supplemental letter dated 9 February 2012 between the Borrower and the Agent; (viii) a supplemental letter dated 27 September 2012 between the Borrower and the Agent; (ix) a supplemental agreement dated 18 November 2013 between the Borrower, the Agent and the Security
|
(B) |
By two master agreements (on the 1992 or 2002 ISDA Master Agreement (Multicurrency-Crossborder) form) (each a "
Master Agreement
"
and together the "
Master Agreements
")
each dated 31 March 2006 and made between the Borrower and the Swap Bank, it was agreed that the Swap Bank may enter into Transactions (as defined in the Master Agreements) with the Borrower from time to time.
|
(C) |
Events of default have occurred and are continuing under each of the Senior Loan Agreement (as defined in the Junior Loan Agreement) and the Junior Loan Agreement as a result of, amongst other things, the Borrower failing to pay all amounts outstanding under each of those loan agreements on the Final Maturity Date (as defined in that loan agreement) (together, the "
Existing Events of Default
").
Each of the Junior Lenders has reserved and preserved all of the rights and remedies available to it under the Finance Documents (as defined in the Junior Loan Agreement).
|
(D) |
This Deed sets out the terms and conditions by which the Assigning Lender shall transfer and assign all of its rights in respect of its Contribution, and all of its obligations in respect of its Commitment, to the Purchaser, and the Purchaser shall accept and assume such rights and obligations.
|
1 . |
INTERPRETATION
|
1.2. |
The following terms shall be defined as set forth below for purposes of this Deed:
|
1.2.1. |
"
Agency Transfer Agreement
" means the agency transfer agreement or deed in the form set out in schedule 4
(
agency transfer agreement
)
to the Senior Sale and Transfer Deed.
|
1.2.2. |
"
Aggregate Purchase Price
" means an amount equal to $22,250,000 less:
|
(i) |
the aggregate amount of any prepayment of the Loan (as defined in the Senior Loan Agreement) made by the Borrower, and received by HSH Nordbank AG (in its capacity as a senior lender), as a result of the sale of any of the Ships named "Ocean Crystal", "Sonoma" and "Coronado" pursuant to clause 8.9
(
mandatory prepayment
)
of the Senior Loan Agreement; and
|
(ii) |
the Senior Purchase Price as of the Effective Date.
|
1.2.3. |
"
Assigned Assets
" means all of the rights and benefits of the Assigning Lender under or in respect of the Finance Documents including, without limitation, the rights and interests of the Assigning Lender in and in respect of:
|
(iii) |
the benefit of any guarantee or other assurance against loss given by any Guarantor;
|
(iv) |
the benefit of any other security; and
|
(v) |
amounts owing to the Assigning Lender under or in respect of the Outstanding Loan.
|
1.2.4. |
"
Assumed Obligations
"
means all of the Assigning Lender's obligations under or in respect of the Finance Documents, including, without limitation, any commitment under the Finance Documents to make or issue the Loan.
|
1.2.5. |
"
Effective Date
"
means the date (falling on or before the Long Stop Date) on which the Agent confirms (acting on the instructions of the Assigning Lender) to the Borrower and the Purchaser that each of the conditions precedent set out in Schedule 1 hereto are satisfied to the satisfaction of the Agent.
|
1.2.6. |
"
Group
"
means, in respect of any person, such person and each of its holding companies and subsidiaries and each subsidiary of each of its holding companies (as each such term is defined in the Companies Act 2006).
|
1.2.7. |
"
Guarantor
"
means any person who has given a guarantee, indemnity, security interest or other assurance against loss to the Assigning Lender (or any person acting on the Assigning Lender's behalf) in respect of any obligations of the Borrower to the Assigning Lender in relation to the Loan.
|
1.2.8. |
"
Long Stop Date
"
means 30 November 2016 or such later date as the Assigning Lender may agree in its absolute discretion.
|
1.2.9. |
"
Outstanding Loan
"
means, in relation to the Assigning Lender, the principal amount of the Loan made to the Borrower which is currently owed to the Assigning Lender under the Junior Loan Agreement or the principal amount outstanding of that borrowing.
|
1.2.10. |
"
Purchaser Warranties
"
means the warranties, representations and indemnities made by, and the covenants and agreements of, the Purchaser set out in the Transfer Documents.
|
1.2.11. |
"
Senior Purchase Price
"
has the meaning given to "Purchase Price" in the Senior Sale and Transfer Deed.
|
1.2.12. |
"
Senior Sale and Transfer Deed
"
means a sale and transfer deed dated the same date as this Deed and made with, amongst others, the Borrower in relation to participations in a senior loan agreement.
|
1.2.13. |
"
Transfer Certificate
"
means a transfer certificate in the form set out on Schedule 2 hereto.
|
1.2.14. |
"
Transfer Documents
"
means this Deed, the Transfer Certificate and the Agency Transfer Agreement.
|
1.3. |
Construction
|
1.3.1. |
The provisions of clause 1
(
interpretation
)
of the Junior Loan Agreement are incorporated in to this Deed as if set out herein.
|
1.3.2. |
In this Deed, unless the contrary intention appears, a reference to a Clause or a Schedule is a reference to a clause of or schedule to this Deed.
|
1.4. |
Headings are for ease of reference only.
|
1.5. |
References to any document shall be references to that document as amended, varied, supplemented, replaced or restated in any manner from time to time.
|
1.6. |
A provision of law is a reference to that provision as amended or re-enacted.
|
2 . |
TRANSFER AND ASSIGNMENT
|
2.1 |
Subject to the occurrence of, and with effect from, the Effective Date, the Assigning Lender will assign and transfer by way of the execution of a Transfer Certificate, without any warranty, representation, covenant or other recourse, all of its rights in respect of all of its Contribution and all of its obligations in respect of its Commitment and any and all right, title or interest in the Assigned Assets and obligations under the Assumed Obligations to the Purchaser.
|
2.2 |
As and with effect from the Effective Date, the Purchaser shall:
|
(a) |
be deemed to accept the assignment and transfer of the Assigning Lender's Contribution, Commitment and Assigned Assets; and
|
(b) |
assume, perform and comply with (vis-a-vis the Junior Lenders, the Agent and the other providers of credit in relation to the Assigned Assets) the Assumed Obligations under the Finance Documents as if originally named as an original party in the Finance Documents in place of the Assigning Lender. The Purchaser acknowledges and agrees that the transfer and assignment by the Assigning Lender to the Purchaser referred to in this Clause 2, and set out in the Transfer Certificate, shall be without any warranty, representation, covenant or other recourse of any kind.
|
2.3 |
Notwithstanding clause 26.11
(
registration fee
)
of the Junior Loan Agreement, the Agent hereby confirms that it waives its entitlement to any registration fee in relation to the transfer and assignment by the Assigning Lender to the Purchaser pursuant to this Deed.
|
3 . |
REPRESENTATIONS AND WARRANTIES
|
3.1 |
Mutual
representations and warranties
Each party to this Deed hereby represents and warrants to each other party that it has full capacity to enter into, execute and deliver the Transfer Documents to which it is or is to be a party and has taken all necessary corporate action and obtained all official consents which it needs to take or obtain in connection with the Transfer Documents to which it is or is to be a party and the transactions contemplated hereby.
|
3.2 |
Purchaser representations and warranties
|
(a) |
it is duly organised, validly existing and in good standing under the laws of the Republic of Liberia;
|
(b) |
its obligations under the Transfer Documents to which it is or is to be a party constitute its legal, valid, binding and enforceable obligations (subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors' rights generally and subject, as to enforceability, to equitable principles of general application);
|
(c) |
no broker, finder or other person acting pursuant to the instructions of a party is entitled to any broker's fee or other commission in connection with this Deed for which any other party may be responsible;
|
(d) |
no notice to, registration with, consent or approval of or any other action by any governmental, regulatory or other authority is or will be required for it to execute, deliver, and perform its obligations under the Transfer Documents to which it is or is to be a party; and
|
(e) |
it will not use any information received by it from any other party to this Deed in relation to the Borrower, any Security Party, any Assigned Asset or any Assumed Obligation for any unlawful purpose or for any public statement.
|
3.3 |
Survival of representations
|
4 . |
CONDITIONS PRECEDENT
|
(a) |
The agreement of the Assigning Lender to assign and transfer its Contribution, Commitments, Assigned Assets and Assumed Obligations to the Purchaser
|
(b) |
The Agent agrees to provide a written confirmation to the Borrower and the Purchaser promptly following satisfaction of the Conditions Precedent.
|
(c) |
In the event that the Effective Date has not occurred on or before the Long Stop Date, the Agent may (acting on the instructions of the Assigning Lender) terminate this Deed by written notice to the Borrower and the Purchaser, whereupon this Deed shall automatically be deemed terminated.
|
5 . |
CONSENT / ACKNOWLEDGMENT TO TRANSFER
|
(a) |
By its signature below, the Borrower confirms that, in accordance with clause 26.2
(
transfer by a Lender
)
of the Junior Loan Agreement, the Assigning Lender has consulted with the Borrower prior to entering into this Deed.
|
(b) |
Notwithstanding any provision of the Junior Loan Agreement to the contrary, each of the parties to this Deed acknowledges and agrees that no consent is required to the transfer and assignment by the Assigning Lender to the Purchaser as set out in this Deed, or, to the extent that consent is required, each irrevocably and unconditionally waives such requirement.
|
6 . |
INDEMNITY
|
(a) |
the Purchaser's breach of any of the provisions of the Transfer Documents; or
|
(b) |
the breach of any of the Purchaser Warranties by the Purchaser; or
|
(c) |
the failure by the Purchaser to perform any of the Assumed Obligations from the Effective Date; or
|
(d) |
any obligation of the Assigning Lender to, in whole or part, disgorge or reimburse any party or entity for any payment or property received, effected by or applied by the Assigning Lender or the Purchaser for the account of the Purchaser under or in connection with any of the Assumed Assets or any of the Assumed Obligations.
|
7 . |
RELEASE
|
8 . |
TAXES AND FEES
|
8.1 |
Stamp taxes / perfection of Security Interests
|
8.2 |
Notarial fees
|
8.3 |
Tax
|
8.4 |
Free and clear payments
|
9 . |
CONTINUING OBLIGATION
|
9.1 |
Each indemnity in any Transfer Document is a continuing obligation, separate and independent from the other obligations of the parties under the Transfer Document and shall survive termination of any Transfer Document; and it is not necessary for any party to a Transfer Document to incur any expense or make any payment before enforcing a right of indemnity conferred by any Transfer Document.
|
9.2 |
No party to any Transfer Document shall be obliged to indemnify any other party to
|
10 . |
CONFIDENTIALITY
|
(e) |
to any member of its Group;
|
(f) |
to its professional advisers and auditors regarding the terms of any of the transactions contemplated by the Transfer Documents;
|
(g) |
in connection with the perfection or enforcement of a party's rights and obligations under any of the Transfer Documents; and
|
(h) |
to any person appointed by that party to provide administration or settlement services in respect of any of the Transfer Documents, any Finance Document or any of the transactions contemplated thereby,
|
11 . |
SUPPLEMENTAL
|
11.1 |
Finance Document
|
11.2 |
Counterparts
|
11.3 |
Third Party rights A person who is not a party to this Deed has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed.
|
12 . |
NOTICES AND PROCESS AGENT
|
12.1 |
The provisions of clause 28
(
notices
)
of the Junior Loan Agreement shall apply to this Deed as if it was expressly incorporated in this Deed, with the notice details for the Purchaser being:
|
12.2 |
The Purchaser irrevocably appoints Ince Process Agents Ltd. at its registered office for the time being, presently at Aldgate Tower, 2 Leman Street, London El 8QN, England, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with this Deed, any other Transfer Document or any non-contractual obligations arising out of or in connection with this or any other Transfer Document.
|
13. |
LAW AND JURISDICTION
|
13.1 |
Governing law
|
13.2 |
Incorporation of Junior Loan Agreement provisions
|
1. |
A duly executed original of:
|
(a) |
this Deed;
|
(b) |
the Transfer Certificate for the Assigning Lender;
|
(c) |
the Agency Transfer Agreement; and
|
(d) |
the Senior Sale and Transfer Deed.
|
2. |
Copies of the resolutions of the directors of the Borrower authorising the execution of this Deed, each of the other documents referred to in paragraph 1 above to which the Borrower is a party and the transactions contemplated hereby or thereby.
|
3. |
Copies of the resolutions of the sole director and the sole shareholder of the Purchaser authorising the execution of this Deed, each of the other documents referred to in paragraph 1 above to which the Purchaser is a party and the transactions contemplated hereby or thereby.
|
4. |
Copies of all consents which the Purchaser or the Borrower requires to enter into, or make any payment, under this Deed or any other document referred to in paragraph 1 above.
|
5. |
Confirmation of receipt by the Agent in full (without any set off, deduction or counterclaim of any kind) of the Aggregate Purchase Price.
|
6. |
All documentation required by each of the Assigning Lender, the Agent and the Security Trustee to satisfy its "know your customer" requirements in relation to the Purchaser.
|
7. |
Evidence satisfactory to the Agent that:
|
(a) |
the Agent has received an "Effective Time Certificate" pursuant to the Agency Transfer Agreement duly executed by the Successor Agent and the Successor Security Trustee (as each is defined in the Agency Transfer Agreement);
|
(b) |
all conditions precedent (other than the occurrence of the Effective Date under this Deed) to the occurrence of the "Effective Date" under the Agency Transfer Agreement have been satisfied;
|
(c) |
the "Effective Date" under the Agency Transfer Agreement will be the same date as the Effective Date under this Deed; and
|
(d) |
the transfer contemplated by the Agency Transfer Agreement will occur and complete no later than the Effective Date under this Deed.
|
8. |
Evidence satisfactory to the Agent that:
|
(a) |
all conditions precedent (other than the occurrence of the Effective Date under this Deed) to the occurrence of the "Effective Date" under the Senior Sale and Transfer Deed have been satisfied;
|
(b) |
the "Effective Date" under the Senior Sale and Transfer Deed will be the same date as the Effective Date under this Deed; and
|
(c) |
the transfer contemplated by the Senior Sale and Transfer Deed will occur and complete no later than the Effective Date under this Deed.
|
9. |
Documentary evidence that the agent for service of process named in Clause 12.2 has accepted its appointment on behalf of the Purchaser.
|
10. |
Favourable legal opinions from lawyers appointed by the Agent of such matters concerning the laws of Liberia and such other jurisdictions as the Agent may require.
|
To: |
HSH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Junior Loan Agreement referred to below.
|
[
·
] 2016
|
1. |
This Certificate relates to a Loan Agreement (the "
Loan Agreement
")
dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
")
,
(2) HSH Nordbank AG and others and each of their successors and assigns (the "
Junior Lenders
"
)
,
(3) IISII Nordbank AG (in its capacity as agent, the "
Agent
")
and (4) HSII Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"
)
,
as amended by that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee (and as otherwise amended, novated or supplemented from time to time, the "
Junior Loan Agreement
")
pursuant to which the Junior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$110,000,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is .. .... 2016
provided
that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4. |
The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Junior Loan Agreement and every other Finance Document in relation to 100 per cent. of the Contribution outstanding to the Transferor (or its predecessors in title).
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Junior Loan Agreement, the Transferor is discharged entirely from its Commitment and the Transferee acquires all such Commitment.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Junior Loan Agreement provides will become binding on it upon this Certificate taking effect,
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Junior Loan Agreement,
|
8. |
[
Intentionally omitted
.
]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Junior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective,
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents;
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
HSH NORDBANK AG
|
ADVICE INVESTMENTS S
.
A
.
|
|
By:
|
By:
|
|
Date:
|
Date:
|
|
Agent
|
||
Signed for itself and for and on
behalf of itself as Agent and for every other Relevant Party |
||
HSH NORDBANK AG
|
||
By:
|
||
Date:
|
||
BORROWER
|
||
EXECUTED AS A DEED
|
)
|
|
by
DRYSHIPS INC
.
|
)
|
|
acting by Dimitrios Drelozis
|
)
|
/s/ Dimitrios Drelozis
|
)
|
||
duly authorised in accordance
|
)
|
|
with the laws of the Republic of
|
)
|
|
the Marshall Islands
|
)
|
|
in the presence of:
|
||
Witness' signature:
|
/s/ Anastasia G. Pavli
|
|
Witness' name: Anastasia G. Pavli
|
||
Witness' address:
|
Attorney-at-Law
52 Ag. Konstantinou Street -15124 Marousi Athens, Greece Tel.: +30 210 6140580 |
|
PURCHASER
|
||
EXECUTED AS A DEED
|
)
|
|
by
ADVICE INVESTMENTS S.A.
|
)
|
|
acting by Alexandros Sigalos
|
)
|
/s/ Alexandros Sigalos
|
)
|
||
duly authorised in accordance
|
)
|
|
with the laws of the Republic of
|
)
|
|
Liberia
|
)
|
|
in the presence of:
|
||
Witness' signature:
|
/s/ Christina Karanasiou
|
|
Witness' name: Christina Karanasiou
|
||
Witness' address:
|
Attorney-at-Law
52 A. Konstantinou Street-15124 Marousi Athens. Greece Tel.: +30 210 6140580 |
|
AGENT
|
||
EXECUTED AS A DEED
|
)
|
|
by
HSH NORDBANK AG
|
)
|
|
acting
|
)
|
/s/ illegible |
)
|
||
duly authorised in accordance
|
)
|
|
with the laws Germany
|
)
|
|
in the presence of:
|
||
Witness' signature:
|
/s/ illegible | |
Witness' name:
|
||
Witness' address:
|
HSN Nordbank | |
Gerhart-Hauptmann-Platz 50 | ||
20095 Hamburg |
SECURITY TRUSTEE
|
||
EXECUTED AS A DEED
|
)
|
|
by
HSH NORDBANK AG
|
)
|
|
acting by
|
)
|
/s/ illegible |
)
|
||
duly authorised in accordance
|
)
|
|
with the laws of Germany
|
)
|
|
in the presence of:
|
||
Witness' signature:
|
/s/ illegible | |
Witness' name:
|
||
Witness' address:
|
HSN Nordbank | |
Gerhart-Hauptmann-Platz 50 | ||
20095 Hamburg | ||
LEAD BOOKRUNNER
|
||
EXECUTED AS A DEED
|
)
|
|
by
HSH NORDBANK AG
|
)
|
|
acting by
|
)
|
/s/ illegible |
)
|
||
duly authorised in accordance
|
)
|
|
with the laws of Germany
|
)
|
|
in the presence of:
|
||
Witness' signature:
|
/s/ illegible | |
Witness' name:
|
||
Witness' address:
|
HSN Nordbank | |
Gerhart-Hauptmann-Platz 50 | ||
20095 Hamburg | ||
ASSIGNING LENDER
|
||
EXECUTED AS A DEED
|
)
|
|
by
HSH NORDBANK AG
|
)
|
|
acting by
|
)
|
/s/ illegible |
)
|
||
duly authorised in accordance
|
)
|
|
with the laws of Germany
|
)
|
|
in the presence of:
|
||
Witness' signature:
|
/s/ Jun Huan | |
Witness' name:
|
Jun Huan | |
Witness' address:
|
HSN Nordbank | |
Gerhart-Hauptmann-Platz 50 | ||
20095 Hamburg | ||
SWAP BANK
|
||
EXECUTED AS A DEED
|
)
|
|
by
HSH NORDBANK AG
|
)
|
|
acting by
|
)
|
/s/ illegible |
)
|
||
duly authorised in accordance
|
)
|
|
with the laws of Germany
|
)
|
|
in the presence of:
|
||
Witness' signature:
|
/s/ Jun Huan | |
Witness' name:
|
Jun Huan | |
Witness' address:
|
HSN Nordbank | |
Gerhart-Hauptmann-Platz 50 | ||
20095 Hamburg | ||
DATED
|
30 November
2016
|
(1) |
DRY SHIPS INC.
(as Borrower) |
(2) |
ADVICE INVESTMENTS S. A.
(as Purchaser) |
(3) |
EACH OF HSH NORDBANK AG , BANK OF AMERICA, N. A. , UNICREDIT BANK AG , NATIXIS AND SANTANDER ASSET FINANCE PLC
(as Participating Senior Lenders) |
(4) |
HSH NORDBANK AG
(as Senior Swap Bank) |
(5) |
HSH NORDBANK AG
(as Lead Bookrunner) |
(6) |
HSH NORDBANK AG
(as Agent) |
(7) |
HSH NORDBANK AG
(as Security Trustee) |
(1) |
DRYSHIPS INC.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH 96960 ("
Borrower
");
|
(2) |
ADVICE INVESTMENTS S.A
., a corporation incorporated in Liberia whose registered office is at 80 Broad Street, Monrovia, Liberia ("
Purchaser
");
|
(3) |
HSH NORDBANK AG,
acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as a senior lender, "
HSH
");
|
(4) |
BANK OF AMERICA, N.A.
, acting through its offices at 214 North Tyron Street – NC 1-027-15-01, Charlotte, NC 28255, USA (in its capacity as a senior lender, "
BANA
");
|
(5) |
UNICREDIT BANK AG
, acting through its offices at Neuer Wall 64, 20354 Hamburg, Germany (in its capacity as a senior lender, "
Unicredit
");
|
(6) |
SANTANDER ASSET FINANCE PLC
., acting through its offices at 2 Triton Square, Regents Place, London NW1 3AN (in its capacity as a senior lender, "
Santander
");
|
(7) |
NATIXIS
, acting through its offices at 68/76 Quai de la Rapee, 75012 Paris, France (in its capacity as a senior lender, "
Natixis
"),
(each of HSH, BANA, Santander, Unicredit, Natixis, " Participating Senior Lenders "); |
(8) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as senior swap bank, "
Senior Swap Bank
");
|
(9) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as lead bookrunner, "
Lead Bookrunner
")
;
|
(10) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as agent, "
Agent
"); and
|
(11) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptman-Platz 50, D-20095 Hamburg, Federal Republic of Germany (in its capacity as security trustee, "
Security Trustee
"),
(each of the Borrower, the Purchaser, the Participating Senior Lenders, the Senior Swap Bank, the Lead Bookrunner, the Agent and the Security Trustee are collectively referred to herein as the " Parties "). |
(A) |
By a loan agreement dated 31 March 2006 between, inter alia, the Borrower, each of the banks and financial institutions listed in Part A of Schedule 1 thereto ("
Senior Lenders
"), the Senior Swap Bank, the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6
th
September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
"), the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
(B) |
As of the date of this Agreement, each of the Senior Lenders' Contributions under the Senior Loan Agreement are as follows:
|
(C) |
By two master agreements (on the 1992 or 2002 ISDA Master Agreement (Multicurrency-Crossborder) form) (each a "
Master Agreement
" and together the "
Master Agreements
") each dated 31 March 2006 and made between the Borrower and the Senior Swap Bank, it was agreed that the Senior Swap Bank would enter into Designated Transactions (as defined in the Master Agreements) with the Borrower from
|
(D) |
Events of Default have occurred and are continuing under the Senior Loan Agreement as a result of, amongst other things, the Borrower failing to pay all amounts outstanding under the Senior Loan Agreement on the Final Maturity Date (as defined in the Senior Loan Agreement) (the "
Existing Events of Default
"). Each of the Senior Lenders have reserved and preserved all of the rights and remedies available to them under the Finance Documents as such term is defined in each of the Senior Loan Agreement.
|
(E) |
This Deed sets out the terms and conditions by which each of the Participating Senior Lenders shall transfer and assign all of their rights in respect of all of its Contribution and obligations in respect of its Commitment to the Purchaser, and the Purchaser shall accept and assume such rights and obligations.
|
1. |
INTERPRETATION
|
1.1. |
Defined expressions
. Words and expressions defined in the Senior Loan Agreement shall have the same meanings when used in this Deed unless the context otherwise requires.
|
1.2. |
The following terms shall be defined as set forth below for purposes of this Deed:
|
1.2.1. |
"
Adviser Fees
" means the amount of the Senior Lenders' financial advisers and legal advisers fees to be paid by the Borrower equal to US$2,000,000.
|
1.2.2. |
"
Agency Transfer Agreement
" means the agency transfer agreement in the form set out on Schedule 4 hereto.
|
1.2.3. |
"
Assigned Assets
" means all of the rights and benefits of each Transferring Lender under or in respect of the Finance Documents including, without limitation, the rights and interests of such Transferring Lender in and in respect of:
|
(i) |
the benefit of any guarantee or other assurance against loss given by any Guarantor;
|
(ii) |
the benefit of any other security; and
|
(iii) |
amounts owing to that Transferring Lender under or in respect of any outstanding Loan.
|
1.2.4. |
"
Assumed Obligations
" means all of each Transferring Lender's obligations under or in respect of the Finance Documents, including, without limitation, any commitment under the Finance Documents to make or issue a Loan and any obligations under any outstanding Loan.
|
1.2.5. |
"
Credit Support
" means a guarantee, indemnity, bond or other similar assurance against financial loss entered into or issued by any Transferring Lender or any other person in connection with the Senior Loan Agreement under or in respect of which such Transferring Lender has any liability whatsoever.
|
1.2.6. |
"
Effective Date
" means the date on which the Agent confirms to the Borrower and the Purchaser that the conditions precedent set out in clause 4.1 are satisfied.
|
1.2.7. |
"
Group
" means, in respect of any person, such person and each of its holding companies and subsidiaries and each subsidiary of each of its holding companies (as each such term is defined in the Companies Act 2006).
|
1.2.8. |
"
Guarantor
" means any person who has given a guarantee, indemnity, security interest or other assurance against loss to a Transferring Lender (or any person acting on such Transferring Lender's behalf) in respect of any obligations of any Borrower to any Transferring Lender in relation to the Loan.
|
1.2.9. |
"
Long Stop Date
" means 30 November 2016, as such date may be extended in the sole discretion of the Participating Senior Lenders.
|
1.2.10. |
"
Outstanding Loan
" means any principal amount of any Loan made to the Borrower which is currently owed to a Transferring Lender under the Senior Loan Agreement or the principal amount outstanding of that borrowing.
|
1.2.11. |
"
Purchase Price
" means an aggregate amount of US$ 40,305,000 (Forty Million, Three Hundred and Five Thousand US Dollars) to be distributed on a pro rata basis amongst the Transferring Lenders in proportion to the Contribution owing to such Transferring Lender in their capacity as a Lender under the Finance Documents as of the Effective Date. The Purchase Price payable to each Transferring Lender is set out in Schedule 1 hereto.
|
1.2.12. |
"
Purchaser Warranties
" means the warranties, representations and indemnities made by, and the covenants and agreements of, the Purchaser in the Transfer Documents.
|
1.2.13. |
"
Transfer Certificate
" means a transfer certificate in the form set out on Schedule 3 hereto.
|
1.2.14. |
"
Transfer Documents
" means this Sale and Transfer Deed and each Transfer Certificate.
|
1.2.15. |
"
Transferring Lenders
" means each of the Participating Senior Lenders transferring and assigning its participation in the Senior Loan Agreement under clause 2.1 (each a "
Transferring Lender
").
|
1.3. |
Construction
|
1.3.1. |
The provisions of clause 1 (
Interpretation
) of the Senior Loan Agreement are incorporated in to this Sale and Purchase Deed as if set out herein.
|
1.3.2. |
In this Sale and Purchase Deed, unless the contrary intention appears, a reference to:
|
(i) |
a Clause or Schedule is a reference to a clause of or schedule to this Sale and Purchase Deed; and
|
(ii) |
the Schedule is a reference to the schedule to the Sale and Purchase Deed.
|
1.4. |
Headings are for ease of reference only.
|
1.5. |
References to any document shall be references to that document as amended, varied, supplemented, replaced or restated in any manner from time to time.
|
1.6. |
A provision of law is a reference to that provision as amended or re-enacted.
|
2. |
TRANSFER AND ASSIGNMENT
|
2.1 |
Subject to clause 4.1 and to the receipt of the Purchase Price by the Agent in full (without deduction, set off or counterclaim), each of HSH, BANA, Santander, Unicredit and Natixis will assign and transfer by way of the execution of a Transfer Certificate, without any warranty, representation, covenant or other recourse, all of their rights in respect of all of their respective Contributions and all of its obligations in respect of their respective Commitments and any and all right, title or interest in the Assigned Assets and obligations under the Assumed Obligations to the Purchaser.
|
2.2 |
As and with effect from the Effective Date, the Purchaser shall:
|
(a) |
be deemed to accept the assignment and transfer of each relevant Senior Lender's Contribution, Commitment and Assigned Assets; and
|
(b) |
assume, perform and comply with (vis-a-vis the Lenders, the Agent and the other providers of credit in relation to the Assigned Assets) the Assumed Obligations under the Finance Documents as if originally named as an Original Lender in the Finance Documents in place of such Transferring Lender. The Purchaser acknowledges and agrees that each transfer and assignment by the relevant Transferring Lenders to the Purchaser set out in clause 2 above shall be without any representations or warranties of any kind.
|
2.3 |
Notwithstanding clause 26.11 of the Senior Loan Agreement, the Agent hereby confirms that it waives its entitlement to any registration fee in relation to the transfers and assignments by the Transferring Lenders to the Purchaser pursuant to this Deed.
|
3. |
REPRESENTATIONS OR WARRANTIES
|
3.1 |
Mutual representations
|
3.2 |
Purchaser representations
|
(a) |
The Purchaser as of the date of this Deed and the Effective Date represents and undertakes to each of the Participating Senior Lenders, the Agent and the Security Trustee that:
|
(i) |
it is duly organised and validly existing under the laws of the jurisdiction in which it is incorporated;
|
(ii) |
its obligations in relation to the transaction constitute legal, valid, binding and enforceable obligations (subject to applicable bankruptcy, reorganisation, insolvency, moratorium or similar laws affecting creditors' rights generally and subject, as to enforceability, to equitable principles of general application);
|
(iii) |
no broker, finder or other person acting pursuant to the instructions of one party is entitled to any broker's fee or other commission in connection with the transaction for which the other party may be responsible;
|
(iv) |
no notice to, registration with, consent or approval of or any other action by any relevant Governmental Authority is or will be required for it to execute, deliver, and perform its obligations under the Transfer Documents or the Agency Agreement; and
|
(v) |
it will not use any information received by it from any Participating Senior Lender in relation to the Borrower or any Security Party, the Assigned Assets or the Assumed Obligations for any unlawful purpose or any public statement.
|
3.3 |
Survival of representations
|
4. |
CONDITIONS PRECEDENT
|
4.1 |
The agreement of each of the Participating Senior Lenders to assign and transfer their respective Contribution, Commitments and Assigned Assets to the Purchaser shall be expressly conditional upon and subject to the fulfilment of each of the conditions precedent set out in Schedule 2 to this Deed (collectively, "
Conditions Precedent
") to the satisfaction of the Agent.
|
4.2 |
The Agent agrees to provide a written confirmation to the Borrower promptly following satisfaction of the Conditions Precedent.
|
4.3 |
In the event that the Conditions Precedent have not been satisfied or the transfers and assignments pursuant to clause 2.1 have not occurred before the Long Stop Date, the Agent may (acting on the instructions of all Participating Senior Lenders) terminate this Deed by written notice to the Borrower and the Purchaser, whereupon this Deed shall automatically be deemed terminated.
|
4.4 |
In the event that each of the transfers and assignments under clause 2.1 do not occur simultaneously, then unless and until each of the transfers and assignments contemplated under clause 2.1 occurs, notwithstanding any provision of the Loan Agreement to the contrary, the Purchaser shall not be entitled to participate in any voting decisions of the "Lenders" under the Senior Loan Agreement. The Agent shall be irrevocably and unconditionally authorised to disregard the Purchaser's Commitments (or any successor of the Purchaser's Contribution) for the purpose of the "Majority Lender" or "all Lender" decisions or instructions thereunder and the Loan Agreement shall be read and construed accordingly.
|
5. |
CONSENT / ACKNOWLEDGMENT TO TRANSFERS
|
5.1 |
By its signature below, the Borrower confirms that, in accordance with clause 26.2 of the Senior Loan Agreement, each of the Transferring Lenders has consulted with the Borrower prior to entering into this Deed.
|
5.2 |
Notwithstanding any provision of the Senior Loan Agreement to the contrary, each of the Parties acknowledges and agrees that no consent is required to the transfer and assignment by the Transferring Lenders to the Purchaser as set out in this Deed, or, to extent that consent is required, each irrevocably and unconditionally waives such requirement.
|
6. |
INDEMNITY
|
(a) |
the Purchaser's breach of any of the provisions of the Transfer Documents; or
|
(b) |
the breach of the Purchaser's Warranties by the Purchaser; or
|
(c) |
the failure by the Purchaser to perform any of the Assumed Obligations from the Effective Date; or
|
(d) |
any obligation of any Transferring Lender to, in whole or part, disgorge or reimburse any party or entity for, payments or property received, effected by or applied by any Transferring Lender or the Purchaser for the account of the Purchaser under or in connection with the Assumed Assets or Assumed Obligations.
|
7. |
MASTER AGREEMENTS
|
7.1 |
Each of the Senior Swap Bank and the Borrower acknowledge and agree that:
|
(a) |
as and with effect from the Effective Date each of the Master Agreements is terminated; and
|
(b) |
the Senior Swap Bank and the Borrower each waive all rights and claims it may have as of the Effective Date under or pursuant to the Master Agreements.
|
8. |
RELEASE
|
9. |
TAXES AND FEES
|
9.1 |
Stamp taxes / Perfection of Security Interests
|
9.2 |
Notarial fees
|
9.3 |
Tax
|
9.4 |
Free and clear payments
|
10. |
AGENCY RESIGNATION AND TRANSFER
|
11. |
CONTINUING OBLIGATION
|
11.1 |
Each indemnity in the Transfer Documents is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of the transaction and it is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by the Transfer Documents.
|
11.2 |
No party to the Transfer Documents shall be obliged to indemnify any other party to the Transfer Documents if the loss of the indemnified party is due to the negligence or wilful misconduct of such other party.
|
12. |
CONFIDENTIALITY
|
(a) |
to members of its respective Group;
|
(b) |
to its or their professional advisers and auditors regarding the terms of the transaction;
|
(c) |
in connection with the perfection or enforcement of a party's rights and obligations under the Transfer Documents; and
|
(d) |
to any person appointed by that party to provide administration or settlement services in respect of the Transfer Documents, any Finance Document or the transaction,
|
13. |
SUPPLEMENTAL
|
13.1 |
Finance Document
|
13.2 |
Counterparts
|
13.3 |
Third Party rights
|
14. |
NOTICES AND PROCESS AGENT
|
14.1 |
The provisions of clause 28 (
Notices
) of the Senior Loan Agreement shall apply to this Deed as if it was expressly incorporated in this Deed with any necessary modifications. All notices to the Purchaser shall be sent as follows: c/o 5/1 Merchants Street, Valletta VLT 1171, Malta, Attention: Ms. Louise Cefai.
|
14.2 |
The Purchaser appoints Ince Process Agents Ltd. at its registered office for the time being, presently at Aldgate Tower, 2 Leman Street, London E1 8QN, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with this Deed.
|
15. |
LAW AND JURISDICTION
|
15.1 |
Governing law
|
15.2 |
Incorporation of the Senior Loan Agreement provisions
|
Lender
|
Lending Office
|
Purchase Price
|
HSH Nordbank AG
|
Gerhart-Hauptmann-Platz 50
D-20095 Hamburg Germany |
$12,863,753.63
|
Bank of America, N.A.
|
$17,492,586.20
|
|
Santander Asset Finance Plc (formerly Alliance & Leicester Commercial Finance plc)
|
2 Triton Square
Regents Place London NW1 3AN |
$3,061,126.21
|
UniCredit Bank AG (formerly known as Bayerische Hypo und Vereinsbank AG)
|
Neuer Wall 64
20354 Hamburg Germany |
$4,209,048.53
|
Natixis
|
68/76 Quai de la Rapee
75012 Paris France |
$2,678,485.43
|
1. |
A duly executed original of:
|
(a) |
this Deed;
|
(b) |
the Transfer Certificate for each Participating Senior Lender; and
|
(c) |
the Agency Transfer Agreement.
|
2. |
Agent confirms it has received an "Effective Time Certificate" pursuant to the Agency Transfer Agreement duly executed by the Successor Agent and Successor Security Trustee (as each is defined in the Agency Transfer Agreement).
|
3. |
Copies of the resolutions of the directors of the Borrower authorising the execution of this Deed and the transactions contemplated hereby.
|
4. |
Copies of the resolutions of the sole director and shareholder of the Purchaser authorising the execution of this Deed and the transactions contemplated hereby.
|
5. |
The original of any power of attorney under which this Deed is executed by any of the Purchaser or the Borrower.
|
6. |
Copies of all consents which the Purchaser and/or Borrower requires to enter into, or make any payment, under this Deed.
|
7. |
Confirmation of receipt by the Agent in full (without set off and deduction of any kind) of the Adviser Fees.
|
8. |
All documentation required by each of the Participating Senior Lenders, the Agent and the Security Trustee to satisfy its "know your customer" requirements in relation to the Purchaser.
|
9. |
Favourable legal opinions from lawyers appointed by the Agent of such matters concerning the laws of Liberia and such other jurisdictions as the Agent may require.
|
To: |
HSH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Senior Loan Agreement referred to below.
|
1. |
This Certificate relates to a loan agreement dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
"), (2) HSH Nordbank AG, Bank of America, N.A., Santander Asset Finance plc (formerly Alliance & Leicester Commercial Finance plc), UniCredit Bank AG (fka Bayerische Hypo uind Vereinsbank AG), Commerzbank Aktiengesellschaft, Natixis and Sumitomo Mitsui Banking Corporation (Brussels Branch) and each of their successors and assigns (the "
Senior Lenders
"), (3) HSH Nordbank AG (in its capacity as agent, the "
Agent
") and (4) HSH Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"), as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6
th
September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
") the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is [-] 2016
provided
that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4. |
The Transferor assigns to the Transferee, without any warranty, representation, covenant or other recourse, absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Senior Loan Agreement and every other Finance Document in relation to [ ●] per cent. of the
Contribution outstanding to the Transferor (or its predecessors in title) which is set out below: |
Contribution
|
Amount transferred
|
|
[ ● ]
|
[ ● ]
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Senior Loan Agreement, the Transferor is discharged entirely from its Commitment which amounts to $0.00 and the Transferee acquires a Commitment of $0.00.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Senior Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Senior Loan Agreement.
|
8. |
[Intentionally omitted]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Senior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective;
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents; and
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
[Name of Transferor]
|
[Name of Transferee]
|
By:
|
By:
|
Date:
|
Date:
|
DATED
|
2016
|
(9) |
DRYSHIPS INC.
(as Borrower) |
(10) |
THE ENTITIES LISTED I N SCHEDULE 1
(as Senior Lenders) |
(11) |
THE ENTITIES LISTED I N SCHEDULE 1
(as Junior Lenders) |
(12) |
HSH NORD BANK AG
(as Retiring Agent and Retiring Security Trustee) |
(13) |
ADVICE INVESTMENTS S.A.
(as Successor Agent and Successor Security Trustee) |
Clause
|
Page
|
|
1
|
DEFINITIONS
|
23
|
2
|
FURTHER DEFINED TERMS
|
23
|
3
|
RESIGNATION AND APPOINTMENT
|
24
|
4
|
CONFIRMATIONS
|
25
|
5
|
CONSEQUENTIAL AMENDMENTS
|
26
|
6
|
IMPLEMENTATION
|
26
|
7
|
EFFECTIVE TIME
|
26
|
8
|
COSTS AND EXPENSES
|
26
|
9
|
FURTHER ASSURANCE
|
26
|
10
|
COUNTERPARTS
|
27
|
11
|
THIRD PARTY RIGHTS
|
27
|
12
|
GOVERNING LAW AND JURISDICTION
|
27
|
SCHEDULE 1 LENDERS
|
28
|
|
SCHEDULE 2 FINANCE DOCUMENTS
|
29
|
|
SCHEDULE 3 FORM OF EFFECTIVE TIME CERTIFICATE
|
38
|
|
SCHEDULE 4 AMENDMENTS
|
40
|
(1) |
DRYSHIPS INC.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH 96960 ("
Borrower
");
|
(2) |
THE ENTITIES
listed in Schedule 1, and their successors and assigns ("
Senior Lenders
");
|
(3) |
THE ENTITIES
listed in Schedule 1, and their successors and assigns ("
Junior Lenders
", and together with the Senior Lenders, the "
Lenders
");
|
(4) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Federal Republic of Germany in its capacity as the retiring agent ("
Retiring Agent
");
|
(5) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Federal Republic of Germany in its capacity as the retiring security trustee ("
Retiring Security Trustee
");
|
(6) |
ADVICE INVESTMENTS S.A.
, with an office at 80 Broad Street, Monrovia, Liberia, in its capacity as the successor agent ("
Successor Agent
"); and
|
(7) |
ADVICE INVESTMENTS S.A.
, with an office at 80 Broad Street, Monrovia, Liberia, in its capacity as the successor security trustee ("
Successor Security Trustee
"),
|
(A) |
By a loan agreement dated 31 March 2006 between, inter alia, the Borrower, each of the banks and financial institutions listed in Part A of Schedule 1 thereto ("
Senior Lenders
"), the Senior Swap Bank, the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6th September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
"), the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate ("
Senior Loan
").
|
(B) |
By a loan agreement dated 31 March 2006 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee ; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; and (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Junior Loan Agreement
" and, together with the Senior Loan Agreement, the "
Loan Agreements
")) the Junior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$110,000,000 in aggregate ("
Junior Loan
" and, together with the Senior Loan, the "
Loans
")).
|
(C) |
By an agency and trust deed dated 31 March 2006, (as amended, novated or supplemented from time to time, "
Agency and Trust Deed
") between,
inter alios
, the Borrower, the Retiring Agent, the Retiring Security Trustee and the senior lenders party thereto and junior lenders parties thereto, the Retiring Agent was appointed as the Agent, and the Retiring Security Trustee was designated to hold the Trust Property on trust for the Creditor Parties and deal with the Trust Property in accordance on the terms and conditions set out therein.
|
(D) |
In connection with the Loans made available under the Loan Agreements and / or as security for the due and punctual payment of the Senior Liabilities and the Subordinated Liabilities, the observance and performance of the Borrower's other obligations under the Finance Documents and / or their obligations and liabilities under the Finance Documents to which they are a party, the Borrower, the Owners, the Approved Manager and certain other parties have executed, among others, the Finance Documents listed in Schedule 2.
|
(E) |
The Retiring Agent now wishes to resign as agent and the Successor Agent wishes to assume the role of agent in its place.
|
(F) |
The Retiring Security Trustee now wishes to resign as trustee and the Successor Security Trustee wishes to assume the role of trustee in its place.
|
1 |
DEFINITIONS
|
2 |
FURTHER DEFINED TERMS
|
2.1 |
In addition in this Agreement:
|
3 |
RESIGNATION AND APPOINTMENT
|
3.1 |
As and with effect from the Effective Time:
|
(a) |
the Retiring Agent shall resign as Agent under the Agency and Trust Deed, the Loan Agreements and the other Finance Documents, and the Successor Agent shall be appointed as Agent thereunder in accordance with clause 5.5 of the Agency and Trust Deed;
|
(b) |
the Retiring Security Trustee shall resign as Security Trustee under the Agency and Trust Deed, the Loan Agreement and the other Finance Documents, and the Successor Security Trustee shall be appointed as Security Trustee thereunder in accordance with clause 5.5 of the Agency and Trust Deed;
|
(c) |
all Trust Property held on trust by the Retiring Security Trustee for the Creditor Parties shall, as and with effect from the Effective Time, vest in, and be held on trust by the Successor Security Trustee in its capacity as trustee;
|
(d) |
the Successor Agent, the Successor Security Trustee and each of the parties to the Agency and Trust Deed, the Loan Agreements and the other Finance Documents, shall have the same rights and obligations among themselves as they would have had if the Successor Agent and the Successor Security Trustee had been parties to the Agency and Trust Deed, the Loan Agreements and the other Finance Documents in place of the Retiring Agent and the Retiring Security Trustee (respectively); and
|
(e) |
the Retiring Agent and the Retiring Security Trustee shall each be unconditionally discharged from any obligations under the Agency and Trust Deed, the Loan Agreements and the other Finance Documents which pertain to the position of Agent and Security Trustee (respectively).
|
3.2 |
Each of the Parties agrees and acknowledges that:
|
(a) |
the resignation of the Retiring Agent and the appointment of the Successor Agent, and the resignation of the Retiring Security Trustee and the appointment of the Successor Security Trustee, in accordance with the foregoing provisions of this Clause 3 shall be effective from the Effective Time notwithstanding the requirements and process set out in clause 5.4 of the Agency and Trust Deed;
|
(b) |
the Successor Agent shall, with effect from the Effective Time, be duly appointed as successor Agent by the Creditor Parties in accordance with clause 5 of the Agency and Trust Deed;
|
(c) |
the Successor Security Trustee shall, with effect from the Effective Time, be duly appointed as successor Security Trustee by the Creditor Parties in accordance with clause 5 of the Agency and Trust Deed; and
|
(d) |
the provisions of clause 5.6(b) and clause 5.8 of the Agency and Trust Deed shall not apply.
|
3.3 |
Each of the Parties agrees and acknowledges that the resignations of the Retiring Agent and the Retiring Security Trustee in accordance with the foregoing provisions of this Clause 3 are without prejudice to any accrued rights of the Retiring Agent and the Retiring Security Trustee as at the Effective Time under the indemnities and other provisions in favour of any of them contained in the Agency and Trust Deed, the Loan Agreements and the Finance Documents, including but not limited to clause 5.7 (
Continued protection of resigning Servicing Bank
) of the Agency and Trust Deed and clause 21 (
Indemnities
) of each Loan Agreement.
|
3.4 |
Neither the Retiring Agent nor the Retiring Security Trustee (i) make any representations or warranties regarding the Loan Agreements, the Finance Documents, the validity or perfection steps taken in regards to any Security Interests, or anything in relation thereto, and shall have no liability of any kind or nature relating thereto; or (ii) shall have any obligation to turn over or provide copies of any correspondence or documentation which the Retiring Agent and/or Retiring Trustee currently holds, or from time to time, may hold which relate to the Loan Agreement or any of the Finance Documents.
|
4 |
CONFIRMATIONS
|
4.1 |
The Borrower hereby agrees and confirm that:
|
(a) |
as and with effect from the Effective Time, save for:
|
(i) |
the replacement of the Retiring Agent by the Successor Agent (with effect that the Successor Agent shall be entitled to all rights and security of the applicable resigning Servicing Bank under or as referred to in the Agency and Trust Deed, the Loan Agreement and each of the other Finance Documents);
|
(ii) |
the replacement of the Retiring Security Trustee by the Successor Security Trustee (with effect that the Successor Security Trustee shall be entitled to all rights and security of the applicable resigning Servicing Bank under or as referred to in the Agency and Trust Deed, the Loan Agreement and each of the other Finance Documents); and
|
(iii) |
the amendments expressly made by this Agreement, the Agency and Trust Deed, the Loan Agreement and each of the other Finance Documents (including, without limitation, any guarantee granted or security constituted thereby) shall continue in full force and effect and be enforceable by the Successor Agent and/or the Successor Security Trustee (as applicable) in accordance with its respective terms; and
|
(b) |
for the avoidance of doubt the resignations of the Retiring Agent and the Retiring Security Trustee and the appointment of the Successor Agent and the Successor Security Trustee shall take effect as such, and shall not result in, or be deemed to constitute, the release or discharge and re-grant of any security constituted by the Finance Documents.
|
4.2 |
The Borrower agrees that it will give and procure such prompt assistance as may be required by the Retiring Agent or the Retiring Security Trustee in relation to the implementation steps referred to in Clause 6.
|
5 |
CONSEQUENTIAL AMENDMENTS
|
6 |
IMPLEMENTATION
|
(a) |
the Retiring Security Trustee shall, at the cost and expense of the Borrower, deliver duly executed releases for each of the Mortgages, in accordance with the requirements of the relevant ship registry, to the Successor Security Trustee and the Successor Security Trustee shall be responsible for filing such releases with the relevant ship registry;
|
(b) |
the Borrower shall satisfy any and all "know your customer" requirements of the Successor Security Trustee and Successor Agent;
|
(c) |
the Successor Security Trustee, with the co-operation and assistance from the Borrower, to the extent necessary, shall amend any security filings to reflect the implementation of this Agreement on the Lenders' instructions;
|
(d) |
the Borrower shall provide the Successor Agent with documents as may be reasonably necessary for the issuing of such legal opinions favourable to the Creditor Parties in relation to the above as to matters of relevant law as may be required by the Successor Agent;
|
(e) |
the Borrower shall provide all cooperation and assistance required by the Retiring Agent in connection with the closure of the existing Earnings Accounts and Retention Account promptly following the Effective Time and in any event no later than 14 days following the Effective Time, or any later date advised by the Retiring Agent.
|
7 |
EFFECTIVE TIME
|
7.1 |
Immediately upon the occurrence of the Effective Time, the Successor Agent and the Successor Security Trustee shall jointly execute the Effective Time Certificate and transmit a copy of it to each other Party, as a record of the Effective Time. For the avoidance of doubt, failure to execute the Effective Time Certificate shall be without prejudice to the occurrence of the Effective Time.
|
8 |
COSTS AND EXPENSES
|
9 |
FURTHER ASSURANCE
|
10 |
COUNTERPARTS
|
11 |
THIRD PARTY RIGHTS
|
12 |
GOVERNING LAW AND JURISDICTION
|
Senior Lenders
|
Address
|
Advice Investments S.A.
|
80 Broad Street, Monrovia,
Liberia |
Junior Lenders
|
Address
|
Advice Investments S.A.
|
80 Broad Street, Monrovia,
Liberia |
1. |
Senior Loan Agreement dated 31.03.06 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
2. |
Junior Loan Agreement dated 31.03.06 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
3. |
Senior Drawdown Notice dated 08.04.08 given by the Borrower to Agent
|
4. |
Junior Drawdown Notice dated 08.04.08 given by the Borrower to Agent
|
5. |
Supplemental letter re Advance for m.v. "MAGANARI" dated 15.05.06 from Agent to Borrower
|
6. |
Supplemental Agreement to Senior Loan Agreement dated 28.11.06 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
7. |
Supplemental Agreement to Junior Loan Agreement dated 28.11.06 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
8. |
Amending and Restated Loan Agreement dated 23.05.07 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
9. |
Amended and Restated Loan Agreement dated 31.03.06 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
10. |
Amended and Restated Loan Agreement dated 25.05.07 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
11. |
Amended and Restated Loan Agreement dated 31.03.06 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
12. |
Supplemental Agreement to Junior Loan Agreement dated 27.02.08 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
13. |
Supplemental Agreement to Junior Loan Agreement dated 17.11.09 between (1)
|
14. |
Supplemental Agreement to Senior Loan Agreement dated 27.02.08 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
15. |
Supplemental Agreement to Senior Loan Agreement dated 17.11.09 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
16. |
Supplemental Letter re Junior Loan Agreement dated 15.05.06 from Agent / Security Trustee to Borrower
|
17. |
Supplemental Letter re Junior Loan Agreement dated 23.04.08 from Agent / Security Trustee to Borrower
|
18. |
Supplemental Letter re Junior Loan Agreement dated 29.09.10 from Agent / Security Trustee to Borrower
|
19. |
Supplemental Letter re Junior Loan Agreement dated 09.02.12 from Agent / Security Trustee to Borrower
|
20. |
Supplemental Letter re Senior Loan Agreement dated 23.04.08 from Agent / Security Trustee to Borrower
|
21. |
Supplemental Letter re Senior Loan Agreement dated 29.09.10 from Agent / Security Trustee to Borrower
|
22. |
Supplemental Letter re Senior Loan Agreement dated 09.02.12 from Agent / Security Trustee to Borrower
|
23. |
Supplemental Letter re Senior Loan Agreement dated 27.09.12 from Agent / Security Trustee to Borrower
|
24. |
Supplemental Agreement re Junior Loan Agreement dated 18.11.13 between (1) Borrower and (2) Agent / Security Trustee
|
25. |
Supplemental Agreement re Senior Loan Agreement dated 18.11.13 between (1) Borrower and (2) Agent / Security Trustee
|
26. |
Variation Agreement re Senior Loan Agreement dated 06.09.2016 between (1) Borrower and (2) Agent / Security Trustee
|
27. |
Variation Agreement re Senior Loan Agreement dated 04.11.2016 between, inter alia, (1) Borrower and (2) Agent / Security Trustee
|
28. |
Variation Agreement re Senior Loan Agreement dated 08.11.2016 between, inter alia, (1) Borrower and (2) Agent / Security Trustee
|
29. |
Fee Letter dated 18.11.13 from Borrower to Agent
|
30. |
Agency and Trust Deed dated 31.03.06 between (1) Borrower (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks (5) Junior Swap Banks (6) Agent and (7) Security Trustee
|
31. |
Guarantee of the Borrower's obligations re HBOS Treasury Services Plc Senior Master Agreement dated 31.03.06 given by The Governor and Company of the Bank of Scotland
|
32. |
Counter Indemnity re HBOS Treasury Services Plc Senior Master Agreement dated 31.03.06 given by the Borrower
|
33. |
Master Agreement Assignment re HSH Nordbank AG Senior Master Agreement (together with Notice of Assignment to Swap Counterparty and Swap Counterparty's Acknowledgment) dated 31.03.06 between (1) Borrower and (2) Security Trustee
|
34. |
Master Agreement Assignment re HBOS Treasury Services Plc Senior Master Agreement (together with Notice of Assignment to Swap Counterparty and Swap Counterparty's Acknowledgment) dated 31.03.06 between (1) Borrower and (2) Security Trustee
|
35. |
Master Agreement Assignment re Commerzbank Aktiengesellschaft Senior Master Agreement (together with Notice of Assignment to Swap Counterparty and Swap Counterparty's Acknowledgments)
|
36. |
Guarantee dated 31.03.06 between (1) Borsari Shipping Company Limited as Guarantor and (2) Security Trustee
|
37. |
Guarantee dated 31.03.06 between (1) Celine Shipping Company Limited as Guarantor and (2) Security Trustee
|
38. |
Guarantee dated 31.03.06 between (1) Wealth Management Inc. as Guarantor and (2) Security Trustee
|
39. |
Guarantee dated 31.03.06 between (1) Tempo Marine Co. as Guarantor and (2) Security Trustee
|
40. |
Guarantee dated 31.03.06 between (1) Star Record Owning Company Limited as Guarantor and (2) Security Trustee
|
41. |
Guarantee dated 31.03.06 between (1) Argo Owning Company Limited as Guarantor and (2) Security Trustee
|
42. |
Guarantee dated 23.05.07 between (1) Dione Owning Company Limited as Guarantor and (2) Security Trustee
|
43. |
Guarantee dated 23.05.07 between (1) Tethys Owning Company Limited as Guarantor and (2) Security Trustee
|
44. |
Guarantee dated 23.05.07 between (1) Rea Owning Company Limited as Guarantor and (2) Security Trustee
|
45. |
Guarantee dated 23.05.07 between (1) Selene Owning Company Limited as Guarantor and (2) Security Trustee
|
46. |
Guarantee dated 11.06.07 between (1) Phoebe Owning Company Limited as Guarantor and (2) Security Trustee
|
47. |
Guarantee dated 11.06.07 between (1) Uranus Owning Company Limited as Guarantor and (2) Security Trustee
|
48. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "CATALINA" dated 05.04.06 between (1) Borsari Shipping Company Limited and (2) Security Trustee
|
49. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "CONRAD OLDENDORFF" dated 05.04.06 between (1) Celine Shipping Company Limited and (2) Security Trustee
|
50. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "MAGANARI" (ex "ATACAMA") dated 15.05.06 between (1) Tempo Marine Co. and (2) Security Trustee
|
51. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "LIGARI" dated 08.09.06 between (1) Star Record Owning Company Limited and (2) Security Trustee
|
52. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "REDONDO" (ex "LIBERTY ONE") dated 18.12.06 between (1) Argo Owning Company Limited and (2) Security Trustee
|
53. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "MARBELLA" dated 29.05.07 between (1) Dione Owning Company Limited and (2) Security Trustee
|
54. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "BARGARA" dated 29.05.07 between (1) Selene Owning Company Limited and (2) Security Trustee
|
55. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "CAPITOLA" dated 01.06.07 between (1) Tethys Owning Company Limited and (2) Security Trustee
|
56. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "MAJORCA" dated 11.06.07 between (1) Phoebe Owning Company Limited and (2) Security Trustee
|
57. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "HEINRICH OLDENDORFF" dated 11.06.07 between (1) Uranus Owning Company Limited and (2) Security Trustee
|
58. |
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "ECOLA" dated 29.08.07 between (1) Rea Owning Company Limited and (2) Security Trustee
|
59. |
General Assignment in respect of m.v. "CATALINA" dated 05.04.06 between (1) Borsari Shipping Company Limited and (2) Security Trustee
|
60. |
General Assignment in respect of m.v. "CONRAD OLDENDORFF" dated 05.04.06 between (1) Celine Shipping Company Limited and (2) Security Trustee
|
61. |
General Assignment in respect of m.v. "MAGANARI" (ex "ATACAMA") dated 15.05.06 between (1) Tempo Marine Co. and (2) Security Trustee
|
62. |
General Assignment in respect of m.v. "LIGARI" dated 08.09.06 between (1) Star Record Owning Company Limited and (2) Security Trustee
|
63. |
General Assignment in respect of m.v. "REDONDO" dated 18.12.06 between (1) Argo Owning Company Limited and (2) Security Trustee
|
64. |
General Assignment in respect of m.v. "MARBELLA" dated 29.05.07 between (1) Dione Owning Company Limited and (2) Security Trustee
|
65. |
General Assignment in respect of m.v. "BARGARA" dated 29.05.07 between (1) Selene Owning Company Limited and (2) Security Trustee
|
66. |
General Assignment in respect of m.v. "CAPITOLA" dated 01.06.07 between (1) Tethys Owning Company Limited and (2) Security Trustee
|
67. |
General Assignment in respect of m.v. "MAJORCA" dated 11.06.07 between (1) Phoebe Owning Company Limited and (2) Security Trustee
|
68. |
General Assignment in respect of m.v. "HEINRICH OLDENDORFF" dated 11.06.07 between (1) Uranus Owning Company Limited and (2) Security Trustee
|
69. |
General Assignment in respect of m.v. "ECOLA" dated 29.08.07 between (1) Rea Owning Company Limited and (2) Security Trustee
|
70. |
Management Agreement Assignment re m.v. "CATALINA" dated 05.04.06 between (1) Borrower and Borsari Shipping Company Limited and (2) Security Trustee
|
71. |
Management Agreement Assignment re m.v. "CONRAD OLDENDORFF" dated 05.04.06 between (1) Borrower and Celine Shipping Company Limited and (2) Security Trustee
|
72. |
Management Agreement Assignment re m.v. "MAGANARI" dated 15.05.06 between
|
73. |
Management Agreement Assignment re m.v. "LIGARI" dated 08.09.06 between (1) Borrower and Star Record Owning Company Limited and (2) Security Trustee
|
74. |
Management Agreement Assignment re m.v. "REDONDO" dated 18.12.06 between (1) Borrower and Argo Owning Company Limited and (2) Security Trustee
|
75. |
Management Agreement Assignment re m.v. "MARBELLA" dated 29.05.07 between (1) Borrower and Dione Owning Company Limited and (2) Security Trustee Manager's Acknowledgement dated 29.05.07 given by Manager
|
76. |
Management Agreement Assignment re m.v. "BARGARA" dated 29.05.07 between (1) Borrower and Selene Owning Company Limited and (2) Security Trustee
|
77. |
Management Agreement Assignment re m.v. "CAPITOLA" dated 01.06.07 between (1) Borrower and Tethys Owning Company Limited and (2) Security Trustee
|
78. |
Management Agreement Assignment re m.v. "MAJORCA" dated 11.06.07 between (1) Borrower and Phoebe Owning Company Limited and (2) Security Trustee
|
79. |
Tripartite Agreement re m.v. "HEINRICH OLDENDORFF" dated 11.06.07 between (1) Uranus Owning Company Limited as Owner (2) Rosewater Maritime Inc as Charterer and (3) Security Trustee
|
80. |
Management Agreement Assignment re m.v. "MAJORCA" dated 29.08.07 between (1) Borrower and Rea Owning Company Limited and (2) Security Trustee
|
81. |
Pledge and Security Agreement dated 09.02.12 between (1) Borrower and (2) Security Trustee
|
82. |
Pledge and Security Agreement dated 27.09.12 between (1) Borrower and (2) Security Trustee
|
83. |
Borrower's Accounts Pledge dated 05.04.06 between (1) Borrower (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
84. |
Account Pledge Agreement dated 05.04.06 between (1) Wealth Management Inc. (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
85. |
Existing Ships Earnings Account Pledge dated 05.04.06 between (1) Existing Ships' Owners (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
86. |
Earnings Account Pledge dated 22.05.06 between (1) Tempo Marine Co. (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
87. |
Earnings Account Pledge dated 08.09.06 between (1) Star Record Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
88. |
Earnings Account Pledge dated 18.12.06 between (1) Argo Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
89. |
Additional Ship Earnings Account Pledge dated 29.05.07 between (1) Dione Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
90. |
Additional Ship Earnings Account Pledge dated 29.05.07 between (1) Selene Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
91. |
Additional Ship Earnings Account Pledge dated 01.06.07 between (1) Tethys Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
92. |
Additional Ship Earnings Account Pledge dated 11.06.07 between (1) Phoebe Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
93. |
Additional Ship Earnings Account Pledge dated 11.06.07 between (1) Uranus Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
94. |
Additional Ship Earnings Account Pledge dated 29.08.07 between (1) Rea Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
95. |
Manager's Undertaking and Notice of Assignment re Existing Ships dated 05.04.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
96. |
Manager's Undertaking and Notice of Assignment re m.v. "MAGANARI" dated 15.05.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
97. |
Manager's Undertaking and Notice of Assignment re m.v. "LIGARI" dated 08.09.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
98. |
Manager's Undertaking and Notice of Assignment re m.v. "REDONDO" dated 11.10.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
99. |
Manager's Undertaking and Notice of Assignment re m.v. "MARBELLA" dated 29.05.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
100. |
Manager's Undertaking and Notice of Assignment re m.v. "BARGARA" dated 29.05.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
101. |
Manager's Undertaking and Notice of Assignment re m.v. "CAPITOLA" dated 01.06.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
102. |
Manager's Undertaking and Notice of Assignment re m.v. "MAJORCA" dated 11.06.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
103. |
Manager's Undertaking and Notice of Assignment re m.v. "ECOLA" dated 29.08.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
(i) |
a loan agreement dated 31 March 2006 between, inter alia, the Borrower, the Senior Lenders, the Senior Swap Banks the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; and (x) the Variation Agreement dated 6 September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
"), the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
(ii) |
a loan agreement dated 31 March 2006 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee ; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; and (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Junior Loan Agreement
") the Junior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$110,000,000 in aggregate.
|
1 |
We refer to the Agency Transfer Agreement. Words and expressions defined in the Agency Transfer Agreement shall have the same meanings when used herein.
|
2 |
This is the Effective Time Certificate.
|
3 |
The undersigned hereby request that the Retiring Agent confirm the occurrence of the Effective Time by completing and countersigning this Effective Time Certificate.
|
for and on behalf of
ADVICE INVESTMENTS S.A.
as Successor Agent
|
for and on behalf of
ADVICE INVESTMENTS S.A.
as Successor Security Trustee
|
for and on behalf of
HSH NORDBANK A.G.
as Retiring Agent
|
1. |
References in the Agency and Trust Deed, the Loan Agreements and the other Finance Documents to which it is a party to "the Agent" shall be construed as references to the Successor Agent as agent.
|
2. |
References in the Agency and Trust Deed, the Loan Agreements and the other Finance Documents to which it is a party to "the Security Trustee" shall be construed as references to the Successor Security Trustee as trustee.
|
SIGNED
by Dimitrios Dreliozis
for and on behalf of
DRYSHIPS INC.
|
)
)
)
)
|
/s/ Dimitrios Dreliozis
|
SIGNED
by Alexandror Sigalar
for and on behalf of
ADVICE INVESTMENTS S.A.
|
)
)
)
|
/s/ Alexandror Sigalar
|
SIGNED
by
for and on behalf of
HSH NORDBANK AG
|
)
)
)
|
SIGNED
by
for and on behalf of
HSH NORDBANK AG
above signatures
Name:
Address:
|
)
)
)
)
|
SIGNED
by
for and on behalf of
HSH NORDBANK AG
above signatures
Name:
Address:
|
)
)
)
)
|
SIGNED
by
for and on behalf of
HSH NORDBANK AG
above signatures
Name:
Address:
|
)
)
)
)
|
/s/ P. Sigler
P. Sigler
HSH NORDBANK
Gerhart-Hauptmann-Platz50
20036 Hamburg
|
SIGNED
by
for and on behalf of
BANK OF AMERICA, N.A.
above signatures
Name:
Address:
|
)
)
)
)
|
/s/ Jonathan Barnes
Jonathan Barnes
214 N. Tryon St.
NC1-027-15-01
Charlotte, NC 28255
|
SIGNED
by
for and on behalf of
SANTANDER ASSET FINANCE PLC
above signatures
Name:
Address:
|
)
)
)
)
|
/s/ Paul Leaver
Paul Leaver
2, Triton Sq., London NW1 3AN
|
SIGNED
by
for and on behalf of
UNICREDIT BANK AG
above signatures
Name:
Address:
|
)
)
)
)
|
Schweiger / Karin Danekas
Neuer Wall 64, 20354 Hamburg, Germany
|
SIGNED
by
for and on behalf of
NATIXIS
above signatures
Name:
Address:
|
)
)
)
)
|
/s/ Franck Chambras /s/ Bernard Issautier
Franck Chambras Bernard Issautier
|
SIGNED
by
for and on behalf of
HSH NORDBANK AG
above signatures
Name:
Address:
|
)
)
)
)
|
/s/ P. Sigler
P. Sigler
HSH NORDBANK
Gerhart-Hauptmann-Platz50
20036 Hamburg
|
D A T E D
|
30 November 2 0 1 6
|
(1) |
DRYSHIPS INC.
(as Borrower) |
(2) |
THE ENTITIES LISTED IN SCHEDULE 1
(as Senior Lenders) |
(3) |
THE ENTITIES LISTED IN SCHEDULE 1
(as Junior Lenders) |
(4) |
HSH NORDBANKAG
(as Retiring Agent and Retiring Security Trustee) |
(5) |
ADVICE INVESTMENTS S.A .
(as Successor Agent and Successor Security Trustee) |
Clause
|
Page
|
|
1
|
DEFINITIONS
|
3
|
2
|
FURTHER DEFINED TERMS
|
3
|
3
|
RESIGNATION AND APPOINTMENT
|
4
|
4
|
CONFIRMATIONS
|
5
|
5
|
CONSEQUENTIAL AMENDMENTS
|
6
|
6
|
IMPLEMENTATION
|
6
|
7
|
EFFECTIVE TIME
|
6
|
8
|
COSTS AND EXPENSES
|
6
|
9
|
FURTHER ASSURANCE
|
6
|
10
|
COUNTERPARTS
|
7
|
11
|
THIRD PARTY RIGHTS
|
7
|
12
|
GOVERNING LAW AND JURISDICTION
|
7
|
SCHEDULE 1 LENDERS
|
8
|
|
SCHEDULE 2 FINANCE DOCUMENTS
|
9
|
|
SCHEDULE 3 FORM OF EFFECTIVE TIME CERTIFICATE
|
17
|
|
SCHEDULE 4 AMENDMENTS
|
19
|
(1) |
DRYSHIPS INC.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH 96960 ("
Borrower
");
|
(2) |
THE ENTITIES
listed in Schedule 1, and their successors and assigns ("
Senior Lenders
");
|
(3) |
THE ENTITIES
listed in Schedule 1, and their successors and assigns ("
Junior Lenders
", and together with the Senior Lenders, the "
Lenders
");
|
(4) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Federal Republic of Germany in its capacity as the retiring agent ("
Retiring Agent
");
|
(5) |
HSH NORDBANK AG
, acting through its office at Gerhart-Hauptmann-Platz 50, D-20095 Hamburg, Federal Republic of Germany in its capacity as the retiring security trustee ("
Retiring Security Trustee
");
|
(6) |
ADVICE INVESTMENTS S.A.
, with an office at 80 Broad Street, Monrovia, Liberia, in its capacity as the successor agent ("
Successor Agent
"); and
|
(7) |
ADVICE INVESTMENTS S.A.
, with an office at 80 Broad Street, Monrovia, Liberia, in its capacity as the successor security trustee ("
Successor Security Trustee
"),
each a " Party " and together the " Parties ". |
(A) |
By a loan agreement dated 31 March 2006 between, inter alia, the Borrower, each of the banks and financial institutions listed in Part A of Schedule 1 thereto ("
Senior Lenders
"), the Senior Swap Bank, the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6th September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
"), the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate ("
Senior Loan
").
|
(B) |
By a loan agreement dated 31 March 2006 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee ; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; and (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Junior Loan Agreement
" and, together with the Senior Loan Agreement, the "
Loan Agreements
")) the Junior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$110,000,000 in aggregate ("
Junior Loan
" and, together with the Senior Loan, the "
Loans
")).
|
(C) |
By an agency and trust deed dated 31 March 2006, (as amended, novated or supplemented from time to time, "
Agency and Trust Deed
") between,
inter alios
, the Borrower, the Retiring Agent, the Retiring Security Trustee and the senior lenders party thereto and junior lenders parties thereto, the Retiring Agent was appointed as the Agent, and the Retiring Security Trustee was designated to hold the Trust Property on trust for the Creditor Parties and deal with the Trust Property in accordance on the terms and conditions set out therein.
|
(D) |
In connection with the Loans made available under the Loan Agreements and / or as security for the due and punctual payment of the Senior Liabilities and the Subordinated Liabilities, the observance and performance of the Borrower's other obligations under the Finance Documents and / or their obligations and liabilities under the Finance Documents to which they are a party, the Borrower, the Owners, the Approved Manager and certain other parties have executed, among others, the Finance Documents listed in Schedule 2.
|
(E) |
The Retiring Agent now wishes to resign as agent and the Successor Agent wishes to assume the role of agent in its place.
|
(F) |
The Retiring Security Trustee now wishes to resign as trustee and the Successor Security Trustee wishes to assume the role of trustee in its place.
|
1 |
DEFINITIONS
|
2 |
FURTHER DEFINED TERMS
|
2.1 |
In addition in this Agreement:
|
3 |
RESIGNATION AND APPOINTMENT
|
3.1 |
As and with effect from the Effective Time:
|
(a) |
the Retiring Agent shall resign as Agent under the Agency and Trust Deed, the Loan Agreements and the other Finance Documents, and the Successor Agent shall be appointed as Agent thereunder in accordance with clause 5.5 of the Agency and Trust Deed;
|
(b) |
the Retiring Security Trustee shall resign as Security Trustee under the Agency and Trust Deed, the Loan Agreement and the other Finance Documents, and the Successor Security Trustee shall be appointed as Security Trustee thereunder in accordance with clause 5.5 of the Agency and Trust Deed;
|
(c) |
all Trust Property held on trust by the Retiring Security Trustee for the Creditor Parties shall, as and with effect from the Effective Time, vest in, and be held on trust by the Successor Security Trustee in its capacity as trustee;
|
(d) |
the Successor Agent, the Successor Security Trustee and each of the parties to the Agency and Trust Deed, the Loan Agreements and the other Finance Documents, shall have the same rights and obligations among themselves as they would have had if the Successor Agent and the Successor Security Trustee had been parties to the Agency and Trust Deed, the Loan Agreements and the other Finance Documents in place of the Retiring Agent and the Retiring Security Trustee (respectively); and
|
(e) |
the Retiring Agent and the Retiring Security Trustee shall each be unconditionally discharged from any obligations under the Agency and Trust Deed, the Loan Agreements and the other Finance Documents which pertain to the position of Agent and Security Trustee (respectively).
|
3.2 |
Each of the Parties agrees and acknowledges that:
|
(a) |
the resignation of the Retiring Agent and the appointment of the Successor Agent, and the resignation of the Retiring Security Trustee and the appointment of the Successor Security Trustee, in accordance with the foregoing provisions of this Clause 3 shall be effective from the Effective Time notwithstanding the requirements and process set out in clause 5.4 of the Agency and Trust Deed;
|
(b) |
the Successor Agent shall, with effect from the Effective Time, be duly appointed as successor Agent by the Creditor Parties in accordance with clause 5 of the Agency and Trust Deed;
|
(c) |
the Successor Security Trustee shall, with effect from the Effective Time, be duly appointed as successor Security Trustee by the Creditor Parties in accordance with clause 5 of the Agency and Trust Deed; and
|
(d) |
the provisions of clause 5.6(b) and clause 5.8 of the Agency and Trust Deed shall not apply.
|
3.3 |
Each of the Parties agrees and acknowledges that the resignations of the Retiring Agent and the Retiring Security Trustee in accordance with the foregoing provisions of this Clause 3 are without prejudice to any accrued rights of the Retiring Agent and the Retiring Security Trustee as at the Effective Time under the indemnities and other provisions in favour of any of them contained in the Agency and Trust Deed, the Loan Agreements and the Finance Documents, including but not limited to clause 5.7 (
Continued protection of resigning Servicing Bank
) of the Agency and Trust Deed and clause 21 (
Indemnities
) of each Loan Agreement.
|
3.4 |
Neither the Retiring Agent nor the Retiring Security Trustee (i) make any representations or warranties regarding the Loan Agreements, the Finance Documents, the validity or perfection steps taken in regards to any Security Interests, or anything in relation thereto, and shall have no liability of any kind or nature relating thereto; or (ii) shall have any obligation to turn over or provide copies of any correspondence or documentation which the Retiring Agent and/or Retiring Trustee currently holds, or from time to time, may hold which relate to the Loan Agreement or any of the Finance Documents.
|
4 |
CONFIRMATIONS
|
4.1 |
The Borrower hereby agrees and confirm that:
|
(a) |
as and with effect from the Effective Time, save for:
|
(i) |
the replacement of the Retiring Agent by the Successor Agent (with effect that the Successor Agent shall be entitled to all rights and security of the applicable resigning Servicing Bank under or as referred to in the Agency and Trust Deed, the Loan Agreement and each of the other Finance Documents);
|
(ii) |
the replacement of the Retiring Security Trustee by the Successor Security Trustee (with effect that the Successor Security Trustee shall be entitled to all rights and
security
of the applicable resigning Servicing Bank under or as referred to in the Agency and Trust Deed, the Loan Agreement and each of the other Finance Documents); and
|
(iii) |
the amendments ex
pressly made by this Agreement,
|
(b) |
for the avoidance of doubt the resignations of the Retiring Agent and the Retiring Security Trustee and the appointment of the Successor Agent and the Successor Security Trustee shall take effect as such, and shall not result in, or be deemed to constitute, the release or discharge and re-grant of any security constituted by the Finance Documents.
|
4.2 |
The Borrower agrees that it will give and procure such prompt assistance as may be required by the Retiring Agent or the Retiring Security Trustee in relation to the implementation steps referred to in Clause 6.
|
5 |
CONSEQUENTIAL AMENDMENTS
|
6 |
IMPLEMENTATION
|
(a) |
the Retiring Security Trustee shall, at the cost and expense of the Borrower, deliver duly executed releases for each of the Mortgages, in accordance with the requirements of the relevant ship registry, to the Successor Security Trustee and the Successor Security Trustee shall be responsible for filing such releases with the relevant ship registry;
|
(b) |
the Borrower shall satisfy any and all "know your customer" requirements of the Successor Security Trustee and Successor Agent;
|
(c) |
the Successor Security Trustee, with the co-operation and assistance from the Borrower, to the extent necessary, shall amend any security filings to reflect the implementation of this Agreement on the Lenders' instructions;
|
(d) |
the Borrower shall provide the Successor Agent with documents as may be reasonably necessary for the issuing of such legal opinions favourable to the Creditor Parties in relation to the above as to matters of relevant law as may be required by the Successor Agent;
|
(e) |
the Borrower shall provide all cooperation and assistance required by the Retiring Agent in connection with the closure of the existing Earnings Accounts and Retention Account promptly following the Effective Time and in any event no later than 14 days following the Effective Time, or any later date advised by the Retiring Agent.
|
7 |
EFFECTIVE TIME
|
7.1 |
Immediately upon the occurrence of the Effective Time, the Successor Agent and the Successor Security Trustee shall jointly execute the Effective Time Certificate and transmit a copy of it to each other Party, as a record of the Effective Time. For the avoidance of doubt, failure to execute the Effective Time Certificate shall be without prejudice to the occurrence of the Effective Time.
|
8 |
COSTS AND EXPENSES
|
9 |
FURTHER ASSURANCE
|
10 |
COUNTERPARTS
|
11 |
THIRD PARTY RIGHTS
|
12 |
GOVERNING LAW AND JURISDICTION
|
Senior Lenders
|
Address
|
Advice Investments S.A.
|
80 Broad Street, Monrovia, Liberia
|
Junior Lenders
|
Address
|
Advice Investments S.A.
|
80 Broad Street, Monrovia, Liberia
|
No.
|
Document
|
1.
|
Senior Loan Agreement dated 31.03.06 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
2.
|
Junior Loan Agreement dated 31.03.06 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
3.
|
Senior Drawdown Notice dated 08.04.08 given by the Borrower to Agent
|
4.
|
Junior Drawdown Notice dated 08.04.08 given by the Borrower to Agent
|
5.
|
Supplemental letter re Advance for m.v. "MAGANARI" dated 15.05.06 from Agent to Borrower
|
6.
|
Supplemental Agreement to Senior Loan Agreement dated 28.11.06 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
7.
|
Supplemental Agreement to Junior Loan Agreement dated 28.11.06 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
8.
|
Amending and Restated Loan Agreement dated 23.05.07 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
9.
|
Amended and Restated Loan Agreement dated 31.03.06 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
10.
|
Amended and Restated Loan Agreement dated 25.05.07 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
11.
|
Amended and Restated Loan Agreement dated 31.03.06 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
12.
|
Supplemental Agreement to Junior Loan Agreement dated 27.02.08 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
13.
|
Supplemental Agreement to Junior Loan Agreement dated 17.11.09 between (1) Borrower (2) Junior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Junior Swap Banks
|
14.
|
Supplemental Agreement to Senior Loan Agreement dated 27.02.08 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
15.
|
Supplemental Agreement to Senior Loan Agreement dated 17.11.09 between (1) Borrower (2) Senior Lenders (3) Agent (4) Security Trustee (5) Lead Arranger (6) Lead Bookrunner (7) Joint Underwriters and (8) Senior Swap Banks
|
16.
|
Supplemental Letter re Junior Loan Agreement dated 15.05.06 from Agent / Security Trustee to Borrower
|
17.
|
Supplemental Letter re Junior Loan Agreement dated 23.04.08 from Agent / Security Trustee to Borrower
|
18.
|
Supplemental Letter re Junior Loan Agreement dated 29.09.10 from Agent / Security Trustee to Borrower
|
19.
|
Supplemental Letter re Junior Loan Agreement dated 09.02.12 from Agent / Security Trustee to Borrower
|
20.
|
Supplemental Letter re Senior Loan Agreement dated 23.04.08 from Agent / Security Trustee to Borrower
|
21.
|
Supplemental Letter re Senior Loan Agreement dated 29.09.10 from Agent / Security Trustee to Borrower
|
22.
|
Supplemental Letter re Senior Loan Agreement dated 09.02.12 from Agent / Security Trustee to Borrower
|
23.
|
Supplemental Letter re Senior Loan Agreement dated 27.09.12 from Agent / Security Trustee to Borrower
|
24.
|
Supplemental Agreement re Junior Loan Agreement dated 18.11.13 between (1) Borrower and (2) Agent / Security Trustee
|
25.
|
Supplemental Agreement re Senior Loan Agreement dated 18.11.13 between (1) Borrower and (2) Agent / Security Trustee
|
26.
|
Variation Agreement re Senior Loan Agreement dated 06.09.2016 between (1) Borrower and (2) Agent / Security Trustee
|
27.
|
Variation Agreement re Senior Loan Agreement dated 04.11.2016 between, inter alia, (1) Borrower and (2) Agent / Security Trustee
|
28.
|
Variation Agreement re Senior Loan Agreement dated 08.11.2016 between, inter alia, (1) Borrower and (2) Agent / Security Trustee
|
29.
|
Fee Letter dated 18.11.13 from Borrower to Agent
|
30.
|
Agency and Trust Deed dated 31.03.06 between (1) Borrower (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks (5) Junior Swap Banks (6) Agent and (7) Security Trustee
|
31.
|
Guarantee of the Borrower's obligations re HBOS Treasury Services Plc Senior Master Agreement dated 31.03.06 given by The Governor and Company of the Bank of Scotland
|
32.
|
Counter Indemnity re HBOS Treasury Services Plc Senior Master Agreement dated 31.03.06 given by the Borrower
|
33.
|
Master Agreement Assignment re HSH Nordbank AG Senior Master Agreement (together with Notice of Assignment to Swap Counterparty and Swap Counterparty's
|
Acknowledgment) dated 31.03.06 between (1) Borrower and (2) Security Trustee
|
|
34.
|
Master Agreement Assignment re HBOS Treasury Services Plc Senior Master Agreement (together with Notice of Assignment to Swap Counterparty and Swap Counterparty's Acknowledgment) dated 31.03.06 between (1) Borrower and (2) Security Trustee
|
35.
|
Master Agreement Assignment re Commerzbank Aktiengesellschaft Senior Master Agreement (together with Notice of Assignment to Swap Counterparty and Swap Counterparty's Acknowledgments)
|
36.
|
Guarantee dated 31.03.06 between (1) Borsari Shipping Company Limited as Guarantor and (2) Security Trustee
|
37.
|
Guarantee dated 31.03.06 between (1) Celine Shipping Company Limited as Guarantor and (2) Security Trustee
|
38.
|
Guarantee dated 31.03.06 between (1) Wealth Management Inc. as Guarantor and (2) Security Trustee
|
39.
|
Guarantee dated 31.03.06 between (1) Tempo Marine Co. as Guarantor and (2) Security Trustee
|
40.
|
Guarantee dated 31.03.06 between (1) Star Record Owning Company Limited as Guarantor and (2) Security Trustee
|
41.
|
Guarantee dated 31.03.06 between (1) Argo Owning Company Limited as Guarantor and (2) Security Trustee
|
42.
|
Guarantee dated 23.05.07 between (1) Dione Owning Company Limited as Guarantor and (2) Security Trustee
|
43.
|
Guarantee dated 23.05.07 between (1) Tethys Owning Company Limited as Guarantor and (2) Security Trustee
|
44.
|
Guarantee dated 23.05.07 between (1) Rea Owning Company Limited as Guarantor and (2) Security Trustee
|
45.
|
Guarantee dated 23.05.07 between (1) Selene Owning Company Limited as Guarantor and (2) Security Trustee
|
46.
|
Guarantee dated 11.06.07 between (1) Phoebe Owning Company Limited as Guarantor and (2) Security Trustee
|
47.
|
Guarantee dated 11.06.07 between (1) Uranus Owning Company Limited as Guarantor and (2) Security Trustee
|
48.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "CATALINA" dated 05.04.06 between (1) Borsari Shipping Company Limited and (2) Security Trustee
Amendment Mortgage dated 30.11.06 by Borsari Shipping Company Limited
Amendment Mortgage dated 30.05.07 by Borsari Shipping Company Limited
Amendment Mortgage dated 16.12.09 by Borsari Shipping Company Limited
|
49.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "CONRAD OLDENDORFF" dated 05.04.06 between (1) Celine Shipping Company Limited and (2) Security Trustee
Amendment Mortgage (re. m.v. "MENDOCINO") dated 30.11.06 by Celine Shipping Company Limited
Amendment Mortgage (re. m.v. "MENDOCINO") dated 30.05.07 by Celine Shipping Company Limited
Amendment Mortgage (re. m.v. "MENDOCINO") dated 16.12.09 by Celine Shipping Company Limited
Mortgage "C" (re. m.v. "MENDOCINO") dated 19.09.07 by Celine Shipping Company Limited
|
50.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "MAGANARI" (ex "ATACAMA") dated 15.05.06 between (1) Tempo Marine Co. and (2) Security Trustee
Amendment Mortgage dated 30.11.06 by Tempo Marine Co.
Amendment Mortgage dated 30.05.07 by Tempo Marine Co.
Amendment Mortgage dated 16.12.09 by Tempo Marine Co.
|
51.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "LIGARI" dated 08.09.06 between (1) Star Record Owning Company Limited and (2) Security Trustee
Amendment Mortgage dated 30.11.06 by Star Record Owning Company Limited
Amendment Mortgage dated 30.05.07 by Star Record Owning Company Limited
Amendment Mortgage dated 16.12.09 by Star Record Owning Company Limited
Mortgage "B" (re. m.v. "LIGARI") dated 19.09.07 by Celine Shipping Company Limited
|
52.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "REDONDO" (ex "LIBERTY ONE") dated 18.12.06 between (1) Argo Owning Company Limited and (2) Security Trustee
Amendment to Maltese Mortgage A re m.v. "REDONDO" dated 30.05.07
Amendment to Maltese Mortgage A re m.v. "REDONDO" dated 16.12.09
|
53.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "MARBELLA" dated 29.05.07 between (1) Dione Owning Company Limited and (2) Security Trustee
Amendment Mortgage dated 16.12.09 by Dione Owning Company Limited
|
54.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "BARGARA" dated 29.05.07 between (1) Selene Owning Company Limited and (2) Security Trustee
|
Amendment to Maltese Mortgage B re m.v. "BARGARA" dated 16.12.09
|
|
55.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "CAPITOLA" dated 01.06.07 between (1) Tethys Owning Company Limited and (2) Security Trustee
Amendment Mortgage dated 16.12.09 by Tethys Owning Company Limited
|
56.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "MAJORCA" dated 11.06.07 between (1) Phoebe Owning Company Limited and (2) Security Trustee Amendment Mortgage dated 16.12.09 by Phoebe Owning Company Limited
|
57.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "HEINRICH OLDENDORFF" dated 11.06.07 between (1) Uranus Owning Company Limited and (2) Security Trustee
Amendment Mortgage (re. m.v. "LEVANTO") dated 16.12.09 by Uranus Owning Company Limited
|
58.
|
First Priority Maltese Statutory Mortgage and collateral Deed of Covenant on m.v. "ECOLA" dated 29.08.07 between (1) Rea Owning Company Limited and (2) Security Trustee
Amendment Mortgage dated 16.12.09 by Rea Owning Company Limited
|
59.
|
General Assignment in respect of m.v. "CATALINA" dated 05.04.06 between (1) Borsari Shipping Company Limited and (2) Security Trustee
|
60.
|
General Assignment in respect of m.v. "CONRAD OLDENDORFF" dated 05.04.06 between (1) Celine Shipping Company Limited and (2) Security Trustee
|
61.
|
General Assignment in respect of m.v. "MAGANARI" (ex "ATACAMA") dated 15.05.06 between (1) Tempo Marine Co. and (2) Security Trustee
|
62.
|
General Assignment in respect of m.v. "LIGARI" dated 08.09.06 between (1) Star Record Owning Company Limited and (2) Security Trustee
|
63.
|
General Assignment in respect of m.v. "REDONDO" dated 18.12.06 between (1) Argo Owning Company Limited and (2) Security Trustee
|
64.
|
General Assignment in respect of m.v. "MARBELLA" dated 29.05.07 between (1) Dione Owning Company Limited and (2) Security Trustee
|
65.
|
General Assignment in respect of m.v. "BARGARA" dated 29.05.07 between (1) Selene Owning Company Limited and (2) Security Trustee
|
66.
|
General Assignment in respect of m.v. "CAPITOLA" dated 01.06.07 between (1) Tethys Owning Company Limited and (2) Security Trustee
|
67.
|
General Assignment in respect of m.v. "MAJORCA" dated 11.06.07 between (1) Phoebe Owning Company Limited and (2) Security Trustee
|
68.
|
General Assignment in respect of m.v. "HEINRICH OLDENDORFF" dated 11.06.07 between (1) Uranus Owning Company Limited and (2) Security Trustee
|
69.
|
General Assignment in respect of m.v. "ECOLA" dated 29.08.07 between (1) Rea Owning Company Limited and (2) Security Trustee
|
70.
|
Management Agreement Assignment re m.v. "CATALINA" dated 05.04.06 between (1) Borrower and Borsari Shipping Company Limited and (2) Security Trustee
|
71.
|
Management Agreement Assignment re m.v. "CONRAD OLDENDORFF" dated 05.04.06 between (1) Borrower and Celine Shipping Company Limited and (2) Security Trustee
|
72.
|
Management Agreement Assignment re m.v. "MAGANARI" dated 15.05.06 between (1) Borrower and Tempo Marine Co. and (2) Security Trustee
|
73.
|
Management Agreement Assignment re m.v. "LIGARI" dated 08.09.06 between (1) Borrower and Star Record Owning Company Limited and (2) Security Trustee
|
74.
|
Management Agreement Assignment re m.v. "REDONDO" dated 18.12.06 between (1) Borrower and Argo Owning Company Limited and (2) Security Trustee
|
75.
|
Management Agreement Assignment re m.v. "MARBELLA" dated 29.05.07 between (1) Borrower and Dione Owning Company Limited and (2) Security Trustee Manager's Acknowledgement dated 29.05.07 given by Manager
|
76.
|
Management Agreement Assignment re m.v. "BARGARA" dated 29.05.07 between (1) Borrower and Selene Owning Company Limited and (2) Security Trustee
|
77.
|
Management Agreement Assignment re m.v. "CAPITOLA" dated 01.06.07 between (1) Borrower and Tethys Owning Company Limited and (2) Security Trustee
|
78.
|
Management Agreement Assignment re m.v. "MAJORCA" dated 11.06.07 between (1) Borrower and Phoebe Owning Company Limited and (2) Security Trustee
|
79.
|
Tripartite Agreement re m.v. "HEINRICH OLDENDORFF" dated 11.06.07 between (1) Uranus Owning Company Limited as Owner (2) Rosewater Maritime Inc as Charterer and (3) Security Trustee
|
80.
|
Management Agreement Assignment re m.v. "MAJORCA" dated 29.08.07 between (1) Borrower and Rea Owning Company Limited and (2) Security Trustee
|
81.
|
Pledge and Security Agreement dated 09.02.12 between (1) Borrower and (2) Security Trustee
|
82.
|
Pledge and Security Agreement dated 27.09.12 between (1) Borrower and (2) Security Trustee
Amendment to Pledge and Security Agreement of 27.09.12 dated 21.06.13
Amendment to Pledge and Security Agreement of 27.09.12 dated 09.09.13
Amendment to Pledge and Security Agreement of 27.09.12 dated 14.11.13
|
83.
|
Borrower's Accounts Pledge dated 05.04.06 between (1) Borrower (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
84.
|
Account Pledge Agreement dated 05.04.06 between (1) Wealth Management Inc. (2)
|
Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
|
85.
|
Existing Ships Earnings Account Pledge dated 05.04.06 between (1) Existing Ships' Owners (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
86.
|
Earnings Account Pledge dated 22.05.06 between (1) Tempo Marine Co. (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
87.
|
Earnings Account Pledge dated 08.09.06 between (1) Star Record Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
88.
|
Earnings Account Pledge dated 18.12.06 between (1) Argo Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
89.
|
Additional Ship Earnings Account Pledge dated 29.05.07 between (1) Dione Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
90.
|
Additional Ship Earnings Account Pledge dated 29.05.07 between (1) Selene Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
91.
|
Additional Ship Earnings Account Pledge dated 01.06.07 between (1) Tethys Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
92.
|
Additional Ship Earnings Account Pledge dated 11.06.07 between (1) Phoebe Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
93.
|
Additional Ship Earnings Account Pledge dated 11.06.07 between (1) Uranus Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
94.
|
Additional Ship Earnings Account Pledge dated 29.08.07 between (1) Rea Owning Company Limited (2) Senior Lenders (3) Junior Lenders (4) Senior Swap Banks and (5) Junior Swap Banks
|
95.
|
Manager's Undertaking and Notice of Assignment re Existing Ships dated 05.04.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
96.
|
Manager's Undertaking and Notice of Assignment re m.v. "MAGANARI" dated 15.05.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
97.
|
Manager's Undertaking and Notice of Assignment re m.v. "LIGARI" dated 08.09.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
98.
|
Manager's Undertaking and Notice of Assignment re m.v. "REDONDO" dated 11.10.06 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
99.
|
Manager's Undertaking and Notice of Assignment re m.v. "MARBELLA" dated 29.05.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
100.
|
Manager's Undertaking and Notice of Assignment re m.v. "BARGARA" dated 29.05.07
|
from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
|
101.
|
Manager's Undertaking and Notice of Assignment re m.v. "CAPITOLA" dated 01.06.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
102.
|
Manager's Undertaking and Notice of Assignment re m.v. "MAJORCA" dated 11.06.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
103.
|
Manager's Undertaking and Notice of Assignment re m.v. "ECOLA" dated 29.08.07 from Cardiff Marine Inc. as Manager to Agent / Security Trustee
|
(i) |
a loan agreement dated 31 March 2006 between, inter alia, the Borrower, the Senior Lenders, the Senior Swap Banks the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; and (x) the Variation Agreement dated 6 September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
"), the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
(ii) |
a loan agreement dated 31 March 2006 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee, as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee ; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; and (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Junior Loan Agreement
") the Junior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$110,000,000 in aggregate.
|
1 |
We refer to the Agency Transfer Agreement. Words and expressions defined in the Agency Transfer Agreement shall have the same meanings when used herein.
|
2 |
This is the Effective Time Certificate.
|
3 |
The undersigned hereby request that the Retiring Agent confirm the occurrence of the Effective Time by completing and countersigning this Effective Time Certificate.
|
for and on behalf of
ADVICE INVESTMENTS S.A.
as Successor Agent
|
for and on behalf of
ADVICE INVESTMENTS S.A.
as Successor Security Trustee
|
for and on behalf of
HSH NORDBANK A.G.
as Retiring Agent
|
1. |
References in the Agency and Trust Deed, the Loan Agreements and the other Finance Documents to which it is a party to "the Agent" shall be construed as references to the Successor Agent as agent.
|
2. |
References in the Agency and Trust Deed, the Loan Agreements and the other Finance Documents to which it is a party to "the Security Trustee" shall be construed as references to the Successor Security Trustee as trustee.
|
EXECUTED
as a deed
DRYSHIPS INC.
by Dimitrios Dreliozis
acting in the presence of:
Name: Anastasia G. Pavli
Address:
|
)
)
)
)
|
/s/ Dimitrios Dreliozis
/s/ Anastasia G. Pavli
Attorney-at-Law
52 Ag. Konstantinou Street-151 24 Marousi
Athens, Greece
Tel.: +30 210 6140580
|
EXECUTED
as a deed
by
ADVICE INVESTMENTS S.A.
by Alexandror Sigalar
acting in the presence of:
Name: Christina Karanasious
Address:
|
)
)
)
)
|
/s/ Alexandror Sigalar
/s/ Christina Karanasious
Attorney-at-Law
52 Ag. Konstantinou Street-151 24 Marousi
Athens, Greece
Tel.: +30 210 6140580
|
EXECUTED
as a deed
by
ADVICE INVESTMENTS S.A.
by Alexandror Sigalar
acting in the presence of:
Name: Christina Karanasious
Address:
|
)
)
)
)
|
/s/ Alexandror Sigalar
/s/ Christina Karanasious
Attorney-at-Law
52 Ag. Konstantinou Street-151 24 Marousi
Athens, Greece
Tel.: +30 210 6140580
|
EXECUTED
as a deed
by
HSH NORDBANK AG
by
acting in the presence of:
Name:
Address:
|
)
)
)
)
|
/s/ illegible
/s/ illegible
HSH Nordbank AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
|
EXECUTED
as a deed
by
HSH NORDBANK AG
by
acting in the presence of:
Name:
Address:
|
)
)
)
)
|
/s/ illegible
/s/ illegible
HSH Nordbank AG
Gerhart-Hauptmann-Platz 50
20095 Hamburg
|
EXECUTED
as a deed
by
ADVICE INVESTMENTS S.A.
acting in the presence of:
Name: Christina Karanasious
Address:
|
)
)
)
)
|
/s/ Alexandror Sigalar
/s/ Christina Karanasious
Attorney-at-Law
52 Ag. Konstantinou Street-151 24 Marousi
Athens, Greece
Tel.: +30 210 6140580
|
EXECUTED
as a deed
by
ADVICE INVESTMENTS S.A.
acting in the presence of:
Name: Christina Karanasious
Address:
|
)
)
)
)
|
/s/ Alexandror Sigalar
/s/ Christina Karanasious
Attorney-at-Law
52 Ag. Konstantinou Street-151 24 Marousi
Athens, Greece
Tel.: +30 210 6140580
|
(1) |
ADVICE INVESTMENTS S.A.
(as Lender) |
(2) |
SIFNOS SHAREHOLDERS INC.
(as Purchaser) |
(1) |
ADVICE INVESTMENTS S.A.
, a corporation incorporated in Liberia whose registered office is at 80 Broad street, Monrovia, Liberia (the "
Lender
") and;
|
(2) |
SIFNOS SHAREHOLDERS INC.
, a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, The Marshall Islands MH 96960 (the "
Purchaser
")
|
(A) |
Reference is made to
|
1. |
a loan agreement dated 31 March 2006 between, inter alia, Dryships Inc as Borrower (the "Corporation") (1) HSH NORDBANK AG as senior lender (in its capacity as a senior lender, "HSH"), (2) Bank of America N.A. as senior lender (in its capacity as a senior lender, "
BANA
"), (3) Unicredit Bank AG as senior lender (in its capacity as a senior lender, "
Unicredit
"), (4) Santander Asset Finance PLC. as senior lender (in its capacity as a senior lender, "
Santander
"), (5) Natixis as senior lender (in its capacity as a senior lender, "
Natixis
") (HSH, BANA, Santander, Unicredit and Natixis, collectively, the "
Senior Lenders
"); HSH Nordbank AG as senior swap bank (in its capacity as senior swap bank, "
Senior Swap Bank
"); HSH Nordbank AG as lead bookrunner (in its capacity as lead bookrunner, "
Lead Bookrunner
"); HSH Nordbank AG as agent (in its capacity as agent, "
Agent
"), and HSH Nordbank AG as security trustee (in its capacity as security trustee, "
Security Trustee
"), as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Corporation and the Agent, (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Corporation, the Agent and the Security Trustee, (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee, (iv) the Supplemental Letter dated 23 April 2008 between the Corporation and the Agent, (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee, (vi) the Supplemental Letter dated 29 September 2010 between the Corporation and the Agent, (vii) the Supplemental Letter dated 9 February 2012 between the Corporation and the Agent, (viii) the Supplemental Letter dated 27 September 2012 between the Corporation and the Agent, (ix) the Supplemental Agreement dated 18 November 2013 between the Corporation, the Agent and the Security Trustee, (x) the Variation Agreement dated 6th September 2016 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee, (xi) the Variation Agreement dated 4 November 2016 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8 November 2016 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
"), pursuant to which the Senior Lenders agreed to make available to the Corporation both term
|
2. |
a loan agreement dated 31 March 2006 between, inter alia (1) the Corporation as borrower, (2) FISH Nordbank AG and others as junior lenders (together in such capacity the "
Junior Lenders
"); HSH Nordbank AG as swap bank (in its capacity as swap bank the "
Swap Bank
"); HSH Nordbank AG as agent (in its capacity as agent the "
Agent
"); HSH Nordbank AG as security trustee (in its capacity as security trustee the "
Security Trustee
"); HSH Nordbank AG as lead bookrunner (in its capacity as lead bookrunner the "
Lead Bookrunner
"), as amended, restated, novated and/or (as the case may be) supplemented by (i) a supplemental letter dated 15 May 2006 between the Borrower and the Agent; (ii) an amending and restating agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) a supplemental agreement dated 27 February 2008 among, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (iv) a supplemental letter dated 23 April 2008 between the Borrower and the Agent; (v) a supplemental agreement dated 17 November 2009 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (vi) a supplemental letter dated 29 September 2010 between the Borrower and the Agent; (vii) a supplemental letter dated 9 February 2012 between the Borrower and the Agent; (viii) a supplemental letter dated 27 September 2012 between the Borrower and the Agent; (ix) a supplemental agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) a variation agreement dated 6 September 2016 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; (xi) a variation Agreement dated 4 November 2016 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee; and (xii) a variation agreement dated 8 November 2016 between, inter alia, the Borrower, the Junior Lenders, the Agent and the Security Trustee (and as otherwise amended, restated, novated and/or (as the case may be) supplemented from time to time, the "
Junior Loan Agreement
"), pursuant to which the Junior Lenders agreed to make available to the Corporation both term loan and short term credit facilities of (originally) up to US$110,000,000 in aggregate
|
(B) |
In line with the provisions of a sale and transfer deed dated 30
th
November 2016 (the "
Senior Transfer Deed
") made among (1) the Corporation, (2) the Lender as purchaser, (3) each of the Senior Lenders, (4) the Senior Swap Bank, (5) the Lead Bookrunner, (6) the Agent and (7) the Security Trustee and a sale and transfer deed dated 30
th
November 2016 (the "
Junior Transfer Deed
") made among (1) the Corporation, (2) the Lender as purchaser , (3) HSH Nordbank AG, as a Junior Lender (in such capacity, the "Assigning Lender"), (4) the Swap Bank, (5) the Lead Bookrunner, (6) the Agent and (7) the Security Trustee, the Senior Lenders and the Assigning Lender sold, transferred and assigned all right, title and interest in and to all of their respective rights under the Senior Loan Agreement and the Junior Loan Agreement to the Lender as purchaser, and the Lender as purchaser purchased, accepted and assumed all of the rights of the Senior Lenders and the Assigning Lender under the Senior Loan Agreement and the Junior Loan Agreement.
|
(C) |
This Deed sets out the terms and conditions by which the Lender shall transfer and assign all of its rights in respect of the Senior Loan Agreement and the Junior Loan
|
1. |
INTERPRETATION
|
1.1. |
Defined expressions
. Words and expressions defined in the Senior Loan Agreement shall have the same meanings when used in this Deed unless the context otherwise requires.
|
1.2. |
The following terms shall be defined as set forth below for purposes of this Deed.
|
1.2.1. |
"
Assigned Assets
" means all of the rights and benefits of the Lender under or in respect of the Senior Loan Agreement and the Junior Loan Agreement including, without limitation, the rights and interests of the Lender in and in respect of:
|
(i) |
the benefit of any guarantee or other assurance against loss given by any Guarantor;
|
(ii) |
the benefit of any other security; and
|
(iii) |
amounts owing to the Lender under or in respect of the Senior Loan Agreement and the Junior Loan Agreement
|
1.2.2. |
"
Assumed Obligations
" means all the Lender's obligations under or in respect of the Senior Loan Agreement and the Junior Loan Agreement, including, without limitation, any commitment under the Senior Loan Agreement and the Junior Loan Agreement and any obligations under the Senior Loan Agreement and the Junior Loan Agreement.
|
1.2.3. |
"
Credit Support
" means a guarantee, indemnity, bond or other similar assurance against financial loss entered into or issued by the Lender or any other person in connection with the Senior Loan Agreement and the Junior Loan Agreement under or in respect of which such the Lender has any liability whatsoever.
|
1.2.4. |
" "
Group
" means, in respect of any person, such person and each of its holding companies and subsidiaries and each subsidiary of each of its holding companies (as each such term is defined in the Companies Act 2006).
|
1.2.5. |
"
Guarantor
" means any person who has given a guarantee, indemnity, security interest or other assurance against loss to the Lender (or any person acting on the Lender's behalf) in respect of any obligations of any Borrower to the Lender in relation to the Senior Loan Agreement and the Junior Loan Agreement.
|
1.2.6. |
"
Transfer Documents
" means this Sale and Transfer Deed
|
1.3. |
Construction
|
1.3.1. |
The provisions of clause 1
(Interpretation)
of the Senior Loan Agreement and the Junior Loan Agreement are incorporated in to this Sale and Purchase Deed as if set out herein.
|
1.3.2. |
In this Sale and Purchase Deed, unless the contrary intention appears, a reference to a Clause is a reference to a clause of this Sale and Purchase Deed;
|
1.4. |
Headings are for ease of reference only.
|
1.5. |
References to any document shall be references to that document as amended, varied, supplemented, replaced or restated in any manner from time to time.
|
1.6. |
A provision of law is a reference to that provision as amended or re-enacted.
|
2. |
TRANSFER AND ASSIGNMENT
|
2.1 |
In consideration of $1 and other good and valuable consideration, receipt whereof is hereby acknowledged the Lender hereby assigns and transfers, without any warranty, representation, covenant or other recourse, all of its rights in respect of the Senior Loan Agreement and the Junior Loan Agreement and all of its obligations in respect of the Senior Loan Agreement and the Junior Loan Agreement and any and all right, title or interest in the Assigned Assets and obligations under the Assumed Obligations to the Purchaser.
|
2.2 |
The Purchaser hereby
|
(a) |
Accepts the assignment and transfer of each the Senior Loan Agreement and the Junior Loan Agreement and Assigned Assets; and
|
(b) |
Assumes to perform and comply with (vis-a-vis the Lender, in relation to the Assigned Assets) the Assumed Obligations under the Finance Documents as if originally named as an Original Lender in the Finance Documents in place of the Lender. The Purchaser acknowledges and agrees that each transfer and assignment by the Lender to the Purchaser set out in clause 2 above shall be without any representations or warranties of any kind.
|
3. |
REPRESENTATIONS OR WARRANTIES
|
4. |
TAXES AND FEES
|
4.1 |
Stamp taxes / Perfection of Security Interests
|
4.2 |
Notarial fees
|
4.3 |
Tax
|
4.4 |
Free and clear payments
|
5. |
CONFIDENTIALITY
|
(a) |
to members of its respective Group;
|
(a) |
to its or their professional advisers and auditors regarding the terms of the transaction;
|
(b) |
in connection with the perfection or enforcement of a party's rights and obligations under the Transfer Documents; and
|
(c) |
to any person appointed by that party to provide administration or settlement services in respect of the Transfer Documents, any Finance Document or the transaction,
|
6. |
SUPPLEMENTAL
|
6.1 |
Finance Document
|
6.2 |
Counterparts
|
6.3 |
Third Party rights
|
7. |
LAW AND JURISDICTION
|
7.1 |
Governing law
|
7.2 |
Incorporation of the Senior Loan Agreement provisions
|
THE LENDER
|
|||
SIGNED
by Louise Cefai
|
)
|
/s/ Louise Cefai
|
|
for and on behalf of
|
)
|
||
ADVICE INVESTMENTS S.A.
|
)
|
LOUISE CEFAI
|
|
5/1 MERCHANTS STR
|
|||
VALLENTA VLT 11171
|
|||
MALTA
|
|||
THE PURCHASER
|
|||
SIGNED
by Louise Cefai
|
)
|
/s/ Louise Cefai
|
|
for and on behalf of
|
)
|
||
SIFNOS SHAREHOLDERS INC.
|
)
|
LOUISE CEFAI
|
|
5/1 MERCHANTS STR
|
|||
VALLENTA VLT 11171
|
|||
MALTA
|
|||
(A) |
WHEREAS, the Lender and the Purchaser have entered into a Sale and Transfer Deed dated 30
th
November 2016 (the "Sale and Transfer Deed") pursuant to the terms of which the Lender agreed to transfer and assign all of its rights in respect of the Senior Loan Agreement and the Junior Loan Agreement and obligations in respect of the Senior Loan Agreement and the Junior Loan Agreement to the Purchaser, and the Purchaser agreed to accept and assume such rights and obligations for $1 and other good and valuable consideration.
|
(B) |
WHEREAS, the Parties have agreed to record in this Side Letter the amount of the purchase price payable by the Purchaser to the Lender in relation to this transaction.
|
For the Lender
|
|||||
By:
|
/s/ Louise Cefai
|
||||
Name:
|
Louise Cefai
|
||||
Title:
|
Sole Director
|
For the Purchaser
|
|||||
By:
|
/s/
Adriano Cefai
|
||||
Name:
|
Adriano Cefai
|
||||
Title:
|
Director of MARE SERVICES LIMITED, Sole Director
|
To: |
HSH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Senior Loan Agreement referred to below.
|
1. |
This Certificate relates to a loan agreement dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
"),
(2) HSH Nordbank AG, Bank of America, N.A., Santander Asset Finance plc (formerly Alliance & Leicester Commercial Finance plc), UniCredit Bank AG (fka Bayerische Hypo uind Vereinsbank AG), Commerzbank Aktiengesellschaft, Natixis and Sumitomo Mitsui Banking Corporation (Brussels Branch) and each of their successors and assigns (the "
Senior Lenders
"),
(3) HSH Nordbank AG (in its capacity as agent, the "
Agent
")
and (4) HSH Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"),
as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6th September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
")
the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is
30 November
2016
provided
that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4. |
The Transferor assigns to the Transferee, without any warranty, representation, covenant or other recourse, absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Senior Loan Agreement and every other Finance Document in relation to 31.9160243843909 per cent. of the Contribution outstanding to the Transferor (or its predecessors in title) which is set out below:
|
Contribution
|
Amount transferred
|
|
$21,723,802.39
|
$21,723,802.39
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Senior Loan Agreement, the Transferor is discharged entirely from its Commitment which amounts to $0.00 and the Transferee acquires a Commitment of $0.00.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Senior Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Senior Loan Agreement.
|
8. |
[Intentionally omitted]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Senior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective;
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents; and
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
HSH NORDANK AG
|
ADVICE INVESTMENTS S.A.
|
||||
By:
|
/s/ Illegible
|
/s/ Illegible
|
By:
|
/s/ Alexandros Sigalas
|
|
Alexandros Sigalas
|
|||||
Date:
|
30 November 2016
|
Date:
|
30 November 2016
|
||
Agent
|
|||||
Agent Signed for itself and for and on
behalf of itself as Agent and for every other Relevant Party |
|||||
HSH NORDBANK AG
|
|||||
By:
|
/s/ Illegible
|
/s/ Illegible
|
|||
Date:
|
30 November 2016
|
To: |
FISH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Senior Loan Agreement referred to below.
|
1. |
This
Certificate
relates to a loan agreement dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
"),
(2) HSH Nordbank AG, Bank of America, N.A., Santander Asset Finance plc (formerly Alliance & Leicester Commercial Finance plc), UniCredit Bank AG (fka Bayerische Hypo uind Vereinsbank AG), Commerzbank Aktiengesellschaft, Natixis and Sumitomo Mitsui Banking Corporation (Brussels Branch) and each of their successors and assigns (the "
Senior Lenders
"),
(3) HSH Nordbank AG (in its capacity as agent, the
"Agent
") and (4) HSH Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"),
as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6
th
September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
") the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is
30 November
2016
provided
that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4. |
The Transferor assigns to the Transferee, without any warranty, representation, covenant or other recourse, absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Senior Loan Agreement and every other Finance Document in relation to 7.5949043716249 per cent. of the Contribution outstanding to the Transferor (or its predecessors in title) which is set out below:
|
Contribution
|
Amount transferred
|
|
$5,169,509.83
|
$5,169,509.83
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Senior Loan Agreement, the Transferor is discharged entirely from its Commitment which amounts to $0.00 and the Transferee acquires a Commitment of $0.00.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Senior Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Senior Loan Agreement.
|
8. |
[Intentionally omitted]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Senior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective;
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents; and
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
SANTANDER ASSET FINANCE PLC
|
ADVICE INVESTMENTS S.A.
|
||
/s/ Pavil Leanar
|
/s/ Alexander Sigalar
|
||
By: Pavil Leanar
|
By: Alexander Sigalar
|
||
Date: 30 November 2016
|
Date: 30 November 2016
|
||
Agent
|
|||
Signed for itself and for and on behalf of itself as Agent and for every other Relevant Party
|
|||
HSH NORDBANK AG
|
|||
/s/ __________
|
|||
By: _____________
|
|||
Date: 30 November 2016
|
To: |
HSH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Senior Loan Agreement referred to below.
|
1. |
This Certificate relates to a loan agreement dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
"),
(2) HSH Nordbank AG, Bank of America, N.A., Santander Asset Finance plc (formerly Alliance & Leicester Commercial Finance plc), UniCredit Bank AG (fka Bayerische Hypo uind Vereinsbank AG), Commerzbank Aktiengesellschaft, Natixis and Sumitomo Mitsui Banking Corporation (Brussels Branch) and each of their successors and assigns (the "
Senior Lenders
"),
(3) HSH Nordbank AG (in its capacity as agent, the "
Agent
")
and (4) HSH Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"),
as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6th September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
")
the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is
30
November
2016
provided
that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4. |
The Transferor assigns to the Transferee, without any warranty, representation, covenant or other recourse, absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Senior Loan Agreement and every other Finance Document in relation to 10.4429935102810 per cent. of the Contribution outstanding to the Transferor (or its predecessors in title) which is set out below:
|
Contribution
|
Amount transferred
|
|
$7,108,076.02
|
$7,108,076.02
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Senior Loan Agreement, the Transferor is discharged entirely from its Commitment which amounts to $0.00 and the Transferee acquires a Commitment of $0.00.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Senior Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Senior Loan Agreement.
|
8. |
[Intentionally omitted]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Senior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective;
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents; and
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
UNICREDIT BANK AG
|
ADVICE INVESTMENTS S.A.
|
||||
By:
|
Schweiger
|
Karin Dänekas
|
By:
|
/s/ Alexandros Sigalas
|
|
Alexandros Sigalas
|
|||||
/s/ Schweiger
|
/s/ Karin Dänekas
|
||||
Date:
|
30 November 2016
|
Date:
|
30 November 2016
|
||
Agent
|
|||||
Agent Signed for itself and for and on
behalf of itself as Agent and for every other Relevant Party |
|||||
HSH NORDBANK AG
|
|||||
By:
|
/s/ Illegible
|
/s/ Illegible
|
|||
Date:
|
30 November 2016
|
To: |
HSH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Junior Loan Agreement referred to below.
|
1. |
This Certificate relates to a Loan Agreement (the "
Loan Agreement
")
dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
"),
(2) HSH Nordbank AG and others and each of their successors and assigns (the "
Junior Lenders
"),
(3) HSH Nordbank AG (in its capacity as agent, the "
Agent
")
and (4) HSH Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"),
as amended by that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee (and as otherwise amended, novated or supplemented from time to time, the "
Junior Loan Agreement
")
pursuant to which the Junior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$110,000,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is 30 November 2016
provided
that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4. |
The Transferor assigns to the Transferee absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Junior Loan Agreement and every other Finance Document in relation to 100 per cent. of the Contribution outstanding to the Transferor (or its predecessors in title).
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Junior Loan Agreement, the Transferor is discharged entirely from its Commitment and the Transferee acquires all such Commitment.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Junior Loan Agreement provides will become binding on it upon this Certificate taking effect,
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Junior Loan Agreement,
|
8. |
[
Intentionally omitted.
]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Junior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective,
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents;
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are
|
HSH NORDBANK AG
|
ADVICE INVESTMENTS S.A.
|
||||
By:
|
/s/ Illegible
|
/s/ Illegible
|
By:
|
/s/ Alexandros Sigalas | |
Alexandros Sigalas | |||||
Date:
|
30 November 2016
|
Date:
|
30 November 2016
|
||
Agent
|
|||||
Signed for itself and for and on
behalf of itself as Agent and for every other Relevant Party |
|||||
HSH NORDBANK AG
|
By:
|
/s/ Illegible
|
/s/ Illegible
|
|||
Date:
|
30 November 2016
|
To: |
HSH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Senior Loan Agreement referred to below.
|
1. |
This Certificate relates to a loan agreement dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
"
),
(2) HSH Nordbank AG, Bank of America, N.A., Santander Asset Finance plc (formerly Alliance
&
Leicester Commercial Finance plc), UniCredit Bank AG (flea Bayerische Hypo uind Vereinsbank AG), Commerzbank Aktiengesellschaft, Natixis and Sumitomo Mitsui Banking Corporation (Brussels Branch) and each of their successors and assigns (the "
Senior Lenders
"
),
(3) HSH Nordbank AG (in its capacity as agent, the "
Agent
"
)
and (4) HSH Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"
),
as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6
th
September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
") the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is
30 November
2016
provided
that this
Certificate shall not come into effect unless it is signed by the Agent on or before that date. |
4. |
The Transferor assigns to the Transferee, without any warranty, representation, covenant or other recourse, absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Senior Loan Agreement and every other Finance Document in relation to 6.6455413216557 per cent. of the Contribution outstanding to the Transferor (or its predecessors in title) which is set out below:
|
Contribution
|
Amount transferred
|
$4,523,321.10
|
$4,523,321.10
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Senior Loan Agreement, the Transferor is discharged entirely from its Commitment which amounts to $0.00 and the Transferee acquires a Commitment of $0.00.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Senior Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Senior Loan Agreement.
|
8. |
[Intentionally omitted]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Senior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective;
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents; and
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or e Security Trustee's own officers or employees.
|
NATIXIS
|
ADVICE INVESTMENTS S.A.
|
|
/s/ Franck Chambras
|
/s/ Alexandror Sigalar
|
|
By: Frank Chambras
|
By: Alexandror Sigalar
|
|
/s/ Bernard Issautier
|
Date: 30 November 2016
|
|
By: Bernard Issautier
|
||
Date: 30 November 2016
|
||
To: |
HSH Nordbank AG for itself and for and on behalf of the Borrower, each Security Party, the Security Trustee, the Swap Banks and each Lender, as defined in the Senior Loan Agreement referred to below.
|
1. |
This Certificate relates to a loan agreement dated 31 March 2006 between, inter alia, (1) Dryships Inc. (the "
Borrower
"),
(2) HSH Nordbank AG, Bank of America, N.A., Santander Asset Finance plc (formerly Alliance & Leicester Commercial Finance plc), UniCredit Bank AG (fka Bayerische Hypo uind Vereinsbank AG), Commerzbank Aktiengesellschaft, Natixis and Sumitomo Mitsui Banking Corporation (Brussels Branch) and each of their successors and assigns (the "
Senior Lenders
"),
(3) HSH Nordbank AG (in its capacity as agent, the
"Agent
")
and (4) HSH Nordbank AG (in its capacity as security trustee, the "
Security Trustee
"),
as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Borrower and the Agent; (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Borrower, the Agent and the Security Trustee; (iii) that certain Supplemental Agreement dated 27 February
.
2008 among, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (iv) the Supplemental Letter dated 23 April 2008 between the Borrower and the Agent; (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (vi) the Supplemental Letter dated 29 September 2010 between the Borrower and the Agent; (vii) the Supplemental Letter dated 9 February 2012 between the Borrower and the Agent; (viii) the Supplemental Letter dated 27 September 2012 between the Borrower and the Agent; (ix) the Supplemental Agreement dated 18 November 2013 between the Borrower, the Agent and the Security Trustee; (x) the Variation Agreement dated 6th September 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; (xi) the Variation Agreement dated 4
1h
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8
th
November 2016 between, inter alia, the Borrower, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
") the Senior Lenders agreed to make available to the Borrower both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.
|
2. |
In this Certificate:
|
3. |
The effective date of this Certificate is
30 November
2016
provided
that this Certificate shall not come into effect unless it is signed by the Agent on or before that date.
|
4. |
The Transferor assigns to the Transferee, without any warranty, representation, covenant or other recourse, absolutely all rights and interests (present, future or contingent) which the Transferor has as Lender under or by virtue of the Senior Loan Agreement and every other Finance Document in relation to 43.4005364120475 per cent. of the Contribution outstanding to the Transferor (or its predecessors in title) which is set out below:
|
Contribution
|
Amount transferred
|
|
$29,540,793.22
|
$29,540,793.22
|
5. |
By virtue of this Transfer Certificate and Clause 26 of the Senior Loan Agreement, the Transferor is discharged entirely from its Commitment which amounts to $0.00 and the Transferee acquires a Commitment of $0.00.
|
6. |
The Transferee undertakes with the Transferor and each of the Relevant Parties that the Transferee will observe and perform all the obligations under the Finance Documents which Clause 26 of the Senior Loan Agreement provides will become binding on it upon this Certificate taking effect.
|
7. |
The Agent, at the request of the Transferee (which request is hereby made) accepts, for the Agent itself and for and on behalf of every other Relevant Party, this Certificate as a Transfer Certificate taking effect in accordance with Clause 26 of the Senior Loan Agreement.
|
8. |
[Intentionally omitted]
|
9. |
The Transferee:
|
(a) |
confirms that it has received a copy of the Senior Loan Agreement and each other Finance Document;
|
(b) |
agrees that the transfer is on a non-recourse basis and that it will have no rights of recourse of any kind on any ground against either the Transferor, the Agent, the Security Trustee, any Swap Bank or any Lender, including but not limited to:
|
(i) |
the Finance Documents proving to be invalid or ineffective;
|
(ii) |
the Borrower or any Security Party failing to observe or perform its obligations, or to discharge its liabilities, under the Finance Documents; and
|
(iii) |
it proves impossible to realise any asset covered by a Security Interest created by a Finance Document, or the proceeds of such assets are insufficient to discharge the liabilities of the Borrower or any Security Party under the Finance Documents;
|
(c) |
agrees that it will have no rights of recourse on any ground against the Agent, the Security Trustee, any Swap Bank or any Lender in the event that this Certificate proves to be invalid or ineffective;
|
(d) |
warrants to the Transferor and each Relevant Party (i) that it has full capacity to enter into this transaction and has taken all corporate action and obtained all official consents which it needs to take or obtain in connection with this transaction; and (ii) that this Certificate is valid and binding as regards the Transferee; and
|
(e) |
confirms the accuracy of the administrative details set out below regarding the Transferee.
|
10. |
The Transferee undertakes with the Agent and the Security Trustee, on demand, fully to indemnify the Agent and/or the Security Trustee in respect of any claim, proceeding, liability or expense (including all legal expenses) which it may incur in connection with this Certificate or any matter arising out of it, except such as are shown to have been mainly and directly caused by the gross and culpable negligence or dishonesty of the Agent's or the Security Trustee's own officers or employees.
|
BANK OF AMERICA, N.A.
|
ADVICE INVESTMENTS S.A.
|
||
/s/ _________
|
/s/ Alexander Sigalar
|
||
By: ____________
|
By: Alexander Sigalar
|
||
Date: 30 November 2016
|
Date: 30 November 2016
|
||
Agent
|
|||
Signed for itself and for and on behalf of itself as Agent and for every other Relevant Party
|
|||
HSH NORDBANK AG
|
|||
/s/ __________
|
|||
By: _____________
|
|||
Date: 30 November 2016
|
1 |
a loan agreement dated 31 March 2006 between, inter alia, the Corporation as Borrower (1) HSH NORDBANK AG as senior lender (in its capacity as a senior lender,"HSH"), (2) Bank of America N.A. as senior lender (in its capacity as a senior lender, "
BANA
"
),
(3) Unicredit Bank AG as senior lender (in its capacity as a senior lender, "
Unicredit
"
),
(4) Santander Asset Finance PLC. as senior lender (in its capacity as a senior lender, "
Santander
"
),
(5) Natixis as senior lender (in its capacity as a senior lender, "
Natixis
"
)
(HSH, BANA, Santander, Unicredit and Natixis, collectively, the "
Senior Lenders
"
);
HSH Nordbank AG as senior swap bank (in its capacity as senior swap bank, "
Senior Swap Bank
"
);
HSH Nordbank AG as lead bookrunner (in its capacity as lead bookrunner, "
Lead Bookrunner
"
);
HSH Nordbank AG as agent (in its capacity as agent, "
Agent
"
),
and HSH Nordbank AG as security trustee (in its capacity as security trustee, "
Security Trustee
"
),
as amended by (i) that certain Supplemental Letter dated 15 May 2006 between the Corporation and the Agent, (ii) that certain Amending and Restating Agreement dated 23 May 2007 between, inter alia, the Corporation, the Agent and the Security Trustee, (iii) that certain Supplemental Agreement dated 27 February 2008 among, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee, (iv) the Supplemental Letter dated 23 April 2008 between the Corporation and the Agent, (v) the Supplemental Agreement dated 17 November 2009 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee, (vi) the Supplemental Letter dated 29 September 2010 between the Corporation and the Agent, (vii) the Supplemental Letter dated 9 February 2012 between the Corporation and the Agent, (viii) the Supplemental Letter dated 27 September 2012 between the Corporation and the Agent, (ix) the Supplemental Agreement dated 18 November 2013 between the Corporation, the Agent and the Security Trustee, (x) the Variation Agreement dated 6th September 2016 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee, (xi) the Variation Agreement dated 4 November 2016 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee; and (xii) the Variation Agreement dated 8 November 2016 between, inter alia, the Corporation, the Senior Lenders, the Agent and the Security Trustee (as otherwise amended, novated or supplemented from time to time, the "
Senior Loan Agreement
"
),
pursuant to which the Senior Lenders agreed to make available to the Corporation both term loan and short term credit facilities of (originally) up to US$518,875,000 in aggregate.;
|
2. |
loan agreement dated 31 March 2006 between, inter alia (1) the Corporation as borrower, (2) HSH Nordbank AG and others as junior lenders (together in such capacity the "
Junior Lenders
"
);
HSH Nordbank AG as swap bank (in its capacity as swap bank the "
Swap Bank
"
);
HSH Nordbank AG as agent (in its capacity as agent the "
Agent
"
);
HSH Nordbank AG as security trustee (in its capacity as security trustee the "
Security Trustee
"
);
HSH Nordbank AG as lead bookrunner (in its capacity as lead bookrunner
|
DRYSHIPS, INC.,
as Borrower
|
|||
By:
|
/s/Dimitris Dreliozis
|
||
Name:
|
Dimitris Dreliozis
|
||
Title:
|
Vice President of Finance
|
||
SIFNOS SHAREHOLDERS INC.,
as Lender
|
|||
By:
|
/s/Alexandros Sigalos
|
||
Name:
|
Alexandros Sigalos
|
||
Title:
|
Attorney-in-fact
|
No
|
Name of vessel
|
Type
|
DWT
|
Flag
|
Year built
|
IMO No.
|
1
|
Mendocino
|
Panamax
|
76,623
|
Malta
|
2002
|
9231298
|
2
|
Maganari
|
Panamax
|
75,941
|
Malta
|
2001
|
9223497
|
3
|
Ligari
|
Panamax
|
75,583
|
Malta
|
2004
|
9279513
|
4
|
Bargara
|
Panamax
|
74,832
|
Malta
|
2002
|
9261360
|
5
|
Capitola
|
Panamax
|
74,816
|
Malta
|
2001
|
9260122
|
6
|
Redondo
|
Panamax
|
74,716
|
Malta
|
2000
|
9211597
|
7
|
Majorca
|
Panamax
|
74,477
|
Malta
|
2005
|
9294109
|
8
|
Catalina
|
Panamax
|
74,432
|
Malta
|
2005
|
9299604
|
9
|
Ecola
|
Panamax
|
73,931
|
Malta
|
2001
|
9216391
|
10
|
Levanto
|
Panamax
|
73,925
|
Malta
|
2001
|
9216406
|
11
|
Marbella
|
Panamax
|
72,561
|
Malta
|
2000
|
9189782
|
12
|
Rapallo
|
Panamax
|
75,123
|
Malta
|
2009
|
9413690
|
13
|
Crescendo
|
PSV
|
1,400
|
Malta
|
2012
|
9651345
|
14
|
Vega Corona
|
PSV
|
1,400
|
NIS
|
2012
|
9651357
|
15
|
Jubilee
|
OSRV
|
1,400
|
Malta
|
2012
|
9651307
|
16
|
Vega Emtoli
|
OSRV
|
1,400
|
NIS
|
2013
|
9655731
|
17
|
Vega Jaanca
|
OSRV
|
1,400
|
NIS
|
2012
|
9651321
|
18
|
Indigo
|
OSRV
|
1,400
|
Malta
|
2013
|
9655676
|
Total
|
905,360
|
#
|
Vessel
|
Type
|
Year
Built |
Applicable Market Value
|
1
|
Marbella
|
Panamax
|
2000
|
|
2
|
Redondo
|
Panamax
|
2000
|
|
3
|
Capitola
|
Panamax
|
2001
|
|
4
|
Ecola
|
Panamax
|
2001
|
|
5
|
Levanto
|
Panamax
|
2001
|
|
6
|
Maganari
|
Panamax
|
2001
|
|
7
|
Bargara
|
Panamax
|
2002
|
|
8
|
Mendocino
|
Panamax
|
2002
|
|
9
|
Ligari
|
Panamax
|
2004
|
|
10
|
Catalina
|
Panamax
|
2005
|
|
11
|
Majorca
|
Panamax
|
2005
|
|
12
|
Rapallo
|
Panamax
|
2009
|
|
13
|
Raraka
|
Panamax
|
2012
|
#
|
Vessel
|
Type
|
Year
Built |
Applicable Market Value
|
1
|
Crescendo
|
PSV
|
2012
|
|
2
|
Vega Corona
|
PSV
|
2012
|
|
3
|
Jubilee
|
OSRV
|
2012
|
|
4
|
Vega Emtoli
|
OSRV
|
2013
|
|
5
|
Vega Jaanca
|
OSRV
|
2012
|
|
6
|
Indigo
|
OSRV
|
2013
|
$
|
200,000,000
|
Dated:_______, 201__
|
DRYSHIPS, INC.
|
|||
By:
|
|||
Name:
|
|||
Its:
|
Date
|
Principal Amount
of Loans |
Interest Period and
Interest Rate with Respect Thereto |
Principal Amount
of Loans Repaid |
Unpaid Principal
Amount of Loans |
Notation
Made By |
[
●
], as Subsidiary Guarantor and a Credit Party
|
|||
By:
|
|||
Name:
|
|||
Its:
|
(I) |
Clients of TMS have entered into agreements to construct high specifications Very Large Gas Carriers under hull no. S881, S882, S883 and 5884 (the "Vessels") (all 78,700 CBM) capable of carrying liquefied petroleum gas ("LPG") at Hyundai Samho Heavy Industries Co. Ltd.(the "Yard"), which are going to be employed on long term charters to major oil companies and oil traders, summarized as follows:
|
a. |
a Shipbuilding Contract dated 10
th
September 2015 between the Yard as Builder and VLGC ALPHA OWNING LTD as Buyer (the "S881 Buyer"), including the specifications and plans therein referred to and all appendices, other addenda and supplements thereto and all modifications which may have been made thereto (the "S881 Shipbuilding Contract"), whereby the Yard agreed to design, build, launch, equip and complete one high specifications Very Large Gas Carrier under hull no 5881 (the "S881 Vessel") and to deliver and sell the 5881 Vessel to the 5881 Buyer, and the 5881 Buyer agreed to purchase and take delivery of the 5881 Vessel from the Yard on the terms and conditions of the 5881 Shipbuilding Contract. Pursuant to the provisions of Article X of the 5881 Shipbuilding Contract a Performance Guarantee was issued by CARDIFF LPG SHIPS L'I'D on 10
th
September 2015 securing the 5881 Buyer's obligations under the S881 Shipbuilding Contract. (the "S881 Performance Guarantee")
|
b. |
a Time Charter Party dated 15
th
September 2015 between Shell International Trading and Shipping Company as Charterer (the "Shell Charterer") and the 5881 Buyer as Owner, including all appendices, other addenda and supplements thereto and all modifications which may have been made thereto (the "S881 Charter Party"), whereby the Shell Charterer agreed to charter the S881 Vessel for a period of five (5) years plus three (3) optional periods of one (1) year each in Shell Charterer's option. Pursuant to the provisions of Article 48 of the S881 Charter Party a Performance Guarantee was issued by
|
c. |
a Shipbuilding Contract dated 10
th
September 2015 between the Yard as Builder and VLGC BETA OWNING LTD as Buyer (the "S882 Buyer"), including the specifications and plans therein referred to and all appendices, other addenda and supplements thereto and all modifications which may have been made thereto (the "5882 Shipbuilding Contract"), whereby the Yard agreed to design, build, launch, equip and complete one high specifications Very Large Gas Carrier under hull no S882 (the "S882 Vessel") and to deliver and sell the S882 Vessel to the S882 Buyer, and the 5882 Buyer agreed to purchase and take delivery of the S882 Vessel from the Yard on the terms and conditions of the S882 Shipbuilding Contract. Pursuant to the provisions of Article X of the S882 Shipbuilding Contract a Performance Guarantee was issued by CARDIFF LPG SHIPS LTD on 10
th
September 2015 securing the S882 Buyer's obligations under the S882 Shipbuilding Contract (the "S882 Performance Guarantee")
|
d. |
a Time Charter Party dated 15
th
September 2015 between Shell Character as Charterer and the S882 Buyer as Owner, including all appendices, other addenda and supplements thereto and all modifications which may have been made thereto (the "S882 Charter Party"), whereby the Shell Charterer agreed to charter the S882 Vessel for a period of five (5) years plus three (3) optional periods of one (1) year each in Shell Charterer's option. Pursuant to the provisions of Article 48 of the S882 Charter Party a Performance Guarantee was issued by CARDIFF LPG SHIPS LTD securing the S882 Buyer's obligations under the S882 Charter Party (the "S882 Guarantee")
|
e. |
a Shipbuilding Contract dated 10
th
September 2015 between the Yard as Builder and VLGC GAMMA OWNING LTD as Buyer (the "S883 Buyer"), including the specifications and plans therein referred to and all appendices, other addenda and supplements thereto including the amendment agreement no.1 dated 11
th
November 2015 and all modifications which may have been made thereto (the "S883 Shipbuilding Contract"), whereby the Yard agreed to design, build, launch, equip and complete one high specifications Very Large Gas Carrier under hull no 5883 (the "S883 Vessel") and to deliver and sell* the 5883 Vessel to the S883 Buyer, and the 5883 Buyer agreed to purchase and take delivery of the S883 Vessel from the Yard on the terms and conditions of the 5883 Shipbuilding Contract. Pursuant to the provisions of Article X of the S883 Shipbuilding Contract a Performance Guarantee was issued by CARDIFF LPG SHIPS LTD on 10
th
September 2015 securing the S883 Buyer's obligations under the 5883 Shipbuilding Contract. (the "S883 Performance Guarantee")
|
f. |
a Time Charter Party dated 10
th
November 2015 between Clearlake Shipping Pte Ltd as Charterer (the "Clearlake Charterer") and the 5883 Buyer as Owner, including all appendices, other addenda and supplements thereto and all modifications which may have been made thereto (the "S883 Charter Party"), whereby the Clearlake Charterer agreed to charter the 5883 Vessel for a period of ten (10) years.
|
g. |
a Shipbuilding Contract dated 10
th
September 2015 between the Yard as Builder and VLGC DELTA OWNING LTD as Buyer (the "S884 Buyer"),
|
h. |
a Time Charter Party dated 10
th
November 2015 between Clearlake Charterer as Charterer and the S884 Buyer as Owner, including all appendices, other addenda and supplements thereto and all modifications which may have been made thereto (the "S884 Charter Party"), whereby the Clearlake Charterer agreed to charter the 5884 Vessel for a period of ten (10) years.
|
(II) |
Dryships, having reviewed and accepted the terms and conditions of the above shipbuilding contracts and charter parties, wishes to enter into an agreement with the Clients of TMS, to obtain four (4) Options to acquire the Vessels to be declared until 4
th
April 2017 and Clients of TMS wish to grant such options to Dryships. The exercise price for each of the Vessels is USD 83,500,000.
|
(III) |
Clients of TMS have granted full and exclusive authority to Tms Cardiff Gas Ltd. to negotiate on their behalf and to execute an eventual agreement, including this Agreement.
|
BUYER:
|
SELLER:
|
|||
For and on behalf of DRYSHIPS INC.:
|
CLIENTS OF TMS CARDIFF GAS LTD.
|
|||
/s/ Dimitrios Dreliozis
|
/s/ Georgios Kourelis
|
|||
By:
Title:
|
Dimitrios Dreliozis
Vice President-Finance
|
TMS CARDIFF GAS LTD for and on behalf of
CLIENTS OF CARDIFF |
||
|
|
By:
|
Georgios Kourelis
|
|
Title
|
Attorney-in-fact
|
For the Buyer
|
||||
By:
|
/s/
Dimitris Dreliozis
|
|||
Name:
|
Dimitrios Dreliozis
|
|||
Title:
|
Attorney-in-fact
|
For the Seller
|
||||
By:
|
/s/ Georgios Kourelis
|
|||
Name:
|
Georgios Kourelis
|
|||
Title:
|
Attorney-in-fact
|
|||
For the Seller's guarantor
|
By:
|
/s/ Georgios Kourelis
|
|||
Name:
|
Georgios Kourelis
|
|||
Title:
|
Attorney-in-fact
|
For the Buyer's guarantor
|
||||
By:
|
/s/
Dimitris Dreliozis
|
|||
Name:
|
Dimitrios Dreliozis
|
|||
Title:
|
Vice President-Finance
|
MEMORANDUM OF AGREEMENT
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase
of ships. Adopted by Baltic and International Maritime Council (BIMCO) in 1956.
Code-name
SALEFORM 1993
Revised 1966, 1983, 1986/87.
|
Built:
|
intention April 2017
|
By:
|
Hyundai Samho Shipyard South Korea
|
||
Flag:
|
Place of Registration: TBA
|
||||
Call Sign:
|
TBA
|
Grt/Nrt:
|
|||
Register Number:
|
TBA
|
1. |
Purchase Price USD
|
2. |
Deposit standard deposit clause
|
3. |
Payment
|
4. |
Inspections
|
5. |
Notices, time and place of delivery
|
a) |
The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall provide the Buyers with approximate /30/20/15/10/7 and definite 5/3/ 2 and 1 days notice of delivery and in every respect physically ready for delivery in accordance with this Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
|
b) |
The Vessel shall be delivered and taken over safely afloat
|
c) |
If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the Vessel will not be ready for delivery by the cancelling date they may notify the Buyers in writing stating the date when they anticipate that the Vessel will be ready for delivery and propose a new cancelling date. Upon receipt of such notification the Buyers shall have the option of either cancelling this Agreement in accordance with Clause 14 within 7 running days of receipt of the notice or of accepting the new date as the new cancelling date. If the Buyers have not declared their option within 7 running days of receipt of the Sellers' notification or if the Buyers accept the new date, the date proposed in the Seller's notification shall be deemed to be the new cancelling date and shall be substituted for the cancelling date stipulated in Clause 5 b) date of cancelling.
|
d) |
Should the Vessel become an actual, constructive or compromised total loss before delivery the deposit together with interest earned shall be released immediately to the Buyers whereafter this Agreement shall be null and void.
|
|
|
|
|
|
|
|
|
|
|
7. |
Spares/bunkers, etc.
|
8. |
Documentation REVERTING SEPARATELY
|
9. |
Encumbrances
|
10. |
Taxes, etc.
|
11. |
Condition on delivery
|
12. |
Buyers' default
|
13. |
Sellers' default
|
14. |
Buyers' representatives
|
15. |
Arbitration
|
a)* |
This agreement shall be governed by and construed in accordance with English law and any dispute arising out of this Agreement shall be referred to arbitration in London in accordance with the Arbitration Acts 1950 and 1979 or any statutory modification or re-enactment thereof for the time being in force, one arbitrator being appointed by each party. On the receipt by one party of the nomination in writing of the other party's arbitrator, that party shall appoint their arbitrator within fourteen days, failing which the decision of the single arbitrator appointed shall apply. If two arbitrators properly appointed shall not agree they shall appoint an umpire whose decision shall be final.
|
16. |
Naming
|
17. |
Assignments
|
18. |
Communication
|
19. |
On Delivery
|
20. |
Private and Confidential
|
/s/ Hyung Ju Seo
|
/s/ Georgios A. [illegible]
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
|
Name: Hyung Ju Seo
|
Name: Georgios A. [illegible]
|
|
Title: Attorney-in-fact
|
Title: Attorney-in-fact
|
|
/s/ Hyung Ju Seo
|
/s/ Sofia Mauda
|
|
For and on behalf of the Sellers' Guarantor
|
For and on behalf of the Buyers' Guarantor
|
|
Name: Hyung Ju Seo
|
Name: Sofia Mauda
|
|
Title: Attorney-in-fact
|
Title: Attorney-in-fact
|
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO 1956.
Code-name
SALEFORM 2012
Revised 1966, 1983 and 1986/87, 1993 and 2012
|
|
MEMORANDUM OF AGREEMENT
|
Year of Build:
|
2011
|
Builder/Yard:
|
Daewoo Shipbuilding & Marine Engineering Co., Ltd. /
Okpo,
Korea
|
Flag:
|
Marshall Islands
|
Place of Registration:
|
Majuro
|
GT/NT:
|
162203/112192
|
hereinafter called the "Vessel", on the following terms and conditions:
|
1. |
Purchase Price
|
2. |
Deposit
|
(i) |
this Agreement has been signed by the Parties and exchanged
|
(ii) |
the Deposit Holder has confirmed in writing to the Parties that the account has been opened
and
able to receive funds
.
|
3. |
Payment
|
(i) |
the Deposit shall be released to the Sellers; and
|
(ii) |
the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement shall be paid in full free of bank charges to the Sellers' Account.
|
4. |
Inspection
|
5. |
Time and place of delivery and notices
|
6. |
Divers Inspection / Drydocking
|
(i) |
The Buyers shall have the option at their cost and expense to arrange for an underwater inspection by a diver approved by the Classification Society prior to the delivery of the Vessel. Such option shall be declared latest nine (9) days prior to the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this Agreement. The Sellers shall at their cost and expense make the Vessel available for such inspection. This inspection shall be carried out without undue delay and in the presence of a Classification Society surveyor arranged for by the Sellers and paid for by the Buyers. The Buyers' representative^) shall have the right to be present at the diver's inspection as observer(s) only without interfering with the work or decisions of the Classification Society surveyor. The extent of the inspection and the conditions under which it is performed shall be to the satisfaction of the Classification Society
rules.
If the conditions at the place of delivery are unsuitable for such inspection, the Sellers shall at their cost and expense make the Vessel available at a suitable alternative place near to the delivery port, in which event the Cancelling Date shall be extended by the additional time required for such positioning and the subsequent re-positioning. The Sellers may not tender Notice of Readiness prior to completion of the underwater inspection.
|
(ii) |
If the rudder, propeller, bottom or other underwater parts below the deepest load line are found broken, damaged or defective so as to affect the Vessel's class, then (1) unless repairs can be carried out afloat to the satisfaction of the Classification Society, the Sellers shall arrange for the Vessel to be drydocked at their expense for inspection by the Classification Society of the Vessel's underwater parts below the deepest load line, the extent of the inspection being in accordance with the Classification Society's rules (2) such defects shall be made good by the Sellers at their cost and expense to the satisfaction of the Classification Society without condition/recommendation** and (3) the Sellers shall pay for the underwater inspection and the Classification Society's attendance.
|
(iii) |
If the Vessel is to be drydocked pursuant to Clause 6(a) (ii) and no suitable dry-docking facilities are available at the port of delivery, the Sellers shall take the Vessel to a port where suitable drydocking facilities are available, whether within or outside the delivery range as per Clause 5(a). Once drydocking has taken place the Sellers shall deliver the Vessel at a port within the delivery range as per Clause 5(a) which shall, for the purpose of this Clause, become the new port of delivery. In such event the Cancelling Date shall be extended by the additional time required for the drydocking and extra steaming, but limited to a maximum of fourteen (14) days.
|
(i) |
The Classification Society may require survey of the tailshaft system, the extent of the survey being to the satisfaction of the Classification surveyor. If such survey is not required by the Classification Society, the Buyers shall have the right to require the tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey being in accordance with the Classification Society's rules for tailshaft survey and consistent with the current stage of the Vessel's survey cycle. The Buyers shall declare whether they require the tailshaft to be drawn and surveyed not later than by the completion of the inspection by the Classification Society. The drawing and refitting of the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be condemned or found defective so as to affect the Vessel's class, those parts shall be renewed or made good at the Sellers' expense to the satisfaction of the Classification Society without condition/recommendation**.
|
(ii) |
The costs and expenses relating to the survey of the tailshaft system shall be borne by the Buyers unless the Classification Society requires such survey to be carried out or if parts of the system are condemned or found defective or broken so as to affect the Vessel's class, in which case the Sellers shall pay these costs and expenses.
|
(iii) |
The Buyers' representative(s) shall have the right to be present in the dry dock, as observer(s) only without interfering but without interfering with the work or decisions of the Classification Society Surveyor.
|
(iv) |
The Buyers shall have the right to have the underwater parts of the Vessel cleaned and painted at their risk, cost and expense without interfering with the Sellers' or the Classification Society surveyor's work, if any, and without affecting the Vessel's timely delivery. If, however, the Buyers' work in drydock is still in progress when the Sellers have completed the work which the Sellers are required to do, the additional docking time needed to complete the Buyers' work shall be for the Buyers' risk, cost and expense. In the event that the Buyers' work requires such additional time, the Sellers may upon completion of the Sellers' work tender Notice of Readiness for delivery whilst the Vessel is still in dry dock and, notwithstanding Clause 5(a), the Buyers shall be obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in drydock or not.
|
7. |
Spares, bunkers and other items
|
8. |
Documentation
|
(i) |
Legal Bill(s) of Sale in a form recordable in the Buyers' Nominated Flag State, transferring title of the Vessel and stating that the Vessel is free from all mortgages, encumbrances and maritime liens or any other debts whatsoever, duly notarially attested and legalised or apostilled, as required by the Buyers Nominated Flag State;
|
(ii) |
Evidence that all necessary corporate, shareholder and other action
in the form of original resolutions of the directors/shareholders
has been taken by the Sellers to authorise the execution, delivery and performance of this Agreement;
|
(iii) |
Power of Attorney of the Sellers appointing one or more representatives to act on behalf of the Sellers in the performance of this Agreement, duly notarially attested and legalised or apostilled (as appropriate);
|
(iv) |
Certificate or Transcript of Registry issued by the competent authorities of the flag state on the date of delivery evidencing the Sellers' ownership of the Vessel and that the Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by such authority to the closing meeting with the original to be sent to the Buyers as soon as possible after delivery of the Vessel;
|
(v) |
Declaration of Class or (depending on the Classification Society) a Class Maintenance Certificate issued within three (3) Banking Days prior to delivery confirming that the Vessel is in Class free of condition/recommendation;
|
(vi) |
Certificate of Deletion of the Vessel from the Vessel's registry or other official evidence of deletion appropriate to the Vessel's registry at the time of delivery, or, in the event that the registry does not as a matter of practice issue such documentation immediately, a written undertaking by the Sellers to effect deletion from the Vessel's registry forthwith and provide a certificate or other official evidence of deletion to the Buyers promptly and latest within four (4) weeks after the Purchase Price has been paid and the Vessel has been delivered;
|
(vii) |
A copy of the Vessel's Continuous Synopsis Record certifying the date on which the Vessel ceased to be registered with the Vessel's registry, or, in the event that the registry does not as a matter of practice issue such certificate immediately, a written undertaking from the Sellers to provide the copy of this certificate promptly upon it being issued together with evidence of submission by the Sellers of a duly executed Form 2 stating the date on which the Vessel shall cease to be registered with the Vessel's registry;
|
(viii) |
Commercial Invoice for the Vessel;
|
(ix) |
Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases;
|
(x) |
A copy of the Sellers' letter to their satellite communication provider cancelling the Vessel's communications contract which is to be sent immediately after delivery of the Vessel;
|
(xi) |
Any additional documents as may reasonably be required by the competent authorities of the Buyers' Nominated Flag State for the purpose of registering the Vessel, provided the Buyers notify the Sellers of any such documents as soon as possible after the date of this Agreement; and
|
(xii) |
The Sellers' letter of confirmation that to the best of their knowledge, the Vessel is not black listed by any nation or international organisation.
|
(xiii) |
A Certificate of Goodstanding to be issued by Marshall Islands authorities. This document to be dated no more than four (4) banking days prior to tender of N.O.R.
|
(xiv) |
Secretarial Certificate issued by the Sellers' Secretary disclosing Directors / Officers and Shareholders of the Sellers notarially attested and legalized by Apostille.
|
(xv) |
Certified copy of Articles of Incorporation of the Sellers.
|
(i) |
Evidence that all necessary corporate, shareholder and other action
in the
form of original resolutions of the directors
has been taken by the Buyers to authorise the execution, delivery and performance of this Agreement; and
|
(ii) |
Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement, duly notarially attested and legalised or apostilled (as appropriate).
|
(iii) |
Certificate of Good standing of the Buyers issued by the competent authorities of the Buyers' place of incorporation and dated no more than then (10) days prior to the delivery date;
|
9. |
Encumbrances
|
10. |
Taxes, fees and expenses
|
11. |
Condition on delivery
|
12. |
Name/markings
|
13. |
Buyers' default
|
14. |
Sellers' default
|
15. |
Buyers' representatives
|
16. |
Law and Arbitration
|
17. |
Notices
|
18. |
Entire Agreement
|
19. |
Confidentiality
|
20. |
Sanctions
|
21. |
Business Principles
|
22. |
Third Party Rights
|
For and on behalf of the Sellers
|
For and of behalf of the
|
|||
/s/ Paul Le Marquand
|
/s/ Sofia Manola
|
|||
Name:
|
Paul Le Marquand
|
Name:
|
Sofia Manola
|
|
Title:
|
Director
|
Title:
|
Attorney-in-Fact
|
|
For and on Behalf of
Morales Corporate Services Limited
Corporate Director
|
|||
1. |
DRYS and its relevant subsidiaries will enter into one or more management agreements with TMS
Bulkers and TMS Offshore
for the provision of certain management services associated with the management of its vessels, including but not limited to:
|
a. |
Executive Management Services (CEO, CFO etc.)
|
b. |
Commercial Services
|
c. |
Accounting Services
|
d. |
Reporting Services
|
e. |
Financing Services
|
f. |
Legal Services
|
g. |
Manning Services
|
h. |
Catering Services
|
i. |
IT Services
|
j. |
Attendance Services
|
k. |
Insurance Services
|
I. |
Technical Services
|
m. |
Operations Services
|
2. |
Upon entering into the management agreements referred to above, the subsidiaries of DRYS undertake to terminate their Management Agreements with TMS Bulkers or TMS Offshore as the case may be with no compensation due by such subsidiaries and DRYS undertakes to terminate their respective agreements with Fabiana Services S.A ("Fabiana"), Basset Holding Inc. ("Basset") and Vivid Finance Limited ("Vivid") with no compensation due by DRYS, so that such services currently provided by Fabiana, Basset and Vivid are being provided solely by TMS Bulkers and TMS Offshore starting on 1/1/2017. In that regard, a reconciliation with any amounts paid to TMS Bulkers, TMS Offshore, Fabiana, Basset and Vivid will be performed to keep DRYS whole.
|
3. |
The financial terms for the provisions of the services shall be as follows:
|
a. |
A one-time setup fee of $2,000,000 payable on execution of the agreement
|
b. |
Performance Fee for 2016: $6,000,000
|
c. |
Base fee: $1,000,000 per month basis up to 20 active vessels ($1,643/d) payable monthly in advance
|
d. |
Re-imbursement of all out-of-pocket expenses (incl. rent) and travel expenses
|
e. |
Performance fee of up to $20,000,000 at BOD discretion in stock or cash
|
f. |
S&P fee : 1%
|
g. |
Chartering: 1,25%
|
h. |
Financing/Advisory: 0,50%
|
i. |
Insurance payable on a gross basis
|
j. |
For every vessel above 20 vessels an additional fee of $ 1,500/d per vessel
|
k. |
Escalation due to inflation/ currency to be reviewed annually
|
4. |
The effective date for application of the above fee schedule will be January 1, 2017.
|
5. |
This agreement will be valid for a period of 10 years and DRYS will have the right to terminate for convenience for a fee of $50,000,000.
|
6. |
This agreement shall be governed and construed in accordance with English Law and any disputes arising hereunder shall be referred to arbitration in London, UK under the LMAA rules.
|
/s/ Dimitris Dreliozis
|
/s/ Dr. Adriano Cefai
|
|
For and on behalf of DRYS
Name: Dimitris Dreliozis
Title: Vice President-Finance
|
Director
Mare Services Ltd
5/1 Merchants Street
Valletta 1171
|
|
For and on behalf of TMS Bulkers
Name: Dr. Adriano Cefai
Title: Director of Mare Services Limited
Sole Director
|
/s/ Dr. Adriano Cefai
|
||
Director
Mare Services Ltd
5/1 Merchants Street
Valletta 1171
|
||
For and on behalf of TMS Bulkers
Name: Dr. Adriano Cefai
Title: Director of Mare Services Limited
Sole Director
|
(1) |
DRYSHIPS INC.
a company organized and existing under the laws of Marshall Islands with registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the "
Dryships
"); and
|
(2) |
VIVID FINANCE LIMITED
, a company organized and existing under the laws of Cyprus having its registered office at 10 Skopa Street, Nicosia, Cyprus ("
Vivid
")
|
A. |
Dryships and Vivid have entered into a Consultancy Agreement with effect as of 1
st
September 2010 as amended and supplemented from time to time (the "Consultancy Agreement") pursuant to which Vivid was engaged to act as consultant on matters of financing for Dryships and for any affiliates, subsidiaries or holding companies as directed by Dryships and Vivid was entitled to receive from Dryships a fee of twenty basis points (0.20%) on the total transaction amount.
|
B. |
The Parties have mutually agreed to terminate at no cost the Consultancy Agreement with effect as of 31
st
December 2016.
|
1. |
THAT the Consultancy Agreement shall be terminated at no cost and shall be no longer in force and effect with effect as of 31s
t
December 2016 (the "Effective Date").
|
2. |
THAT from the Effective Date the Parties hereby mutually release and discharge each other and any of its affiliates, subsidiaries or holding companies and its officers, directors and employees from and against any and all monetary claims, costs, damages, liabilities, and/or any other debts whatsoever which either of the Parties hereto now has or may hereafter have, against the other Party hereto, by reason of, or in connection with the Consultancy Agreement and/or the termination of the Consultancy Agreement pursuant to the provisions of this Agreement.
|
For and on behalf of
DRYSHIPS INC.
|
For and on behalf of
VIVID FINANCE LIMITED
|
|
/s/ Dimitris Dreliozis
|
/s/ Yiannoula Georghiades
|
|
Name: Dimitris Dreliozis
|
Name: Yiannoula Georghiades
|
|
Title: Vice President of Finance
|
Title: Director
|
|
/s/ Eleni Papapetrou
|
||
Name: Eleni Papapetrou
|
||
Title: Director
|
||
MEMORANDUM OF AGREEMENT
|
Norwegian Shipbrokers' Association's
Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO 1956.
Code-name
SALEFORM 2012
Revised 1966, 1983 and 1986/87, 1993 and 2012
|
Year of Build:
|
2012
|
Builder/Yard:
|
Fujian, CHINA
|
Flag:
|
NIS
|
Place of Registration:
|
NORWAY
|
GRT/NRT:
|
1680/504
|
hereinafter called the Vessel, on the following terms and conditions:
|
(i) |
|
(ii) |
|
(i) |
|
(i
|
|
(a)** |
|
(i) |
|
(ii) |
|
(iii) |
|
(i) |
|
(ii) |
|
(iii) |
|
(v) |
|
(i) |
Three (3) originals of Legal Bill of Sale (Maltese Form) duly executed, notarially attested and legalized by Apostille.
|
(ii) |
Original Resolutions of the sole Director of the Sellers approving the sale of the vessel to the Buyers and authorising the issuance of a Power of Attorney (Item 8. (iii)) and the execution of the relevant delivery documents, said document to be notarially attested and legalized by Apostille.
|
(iii) |
Original Power of Attorney issued pursuant to the document referred to under Item 8.(ii) appointing attorneys-in-fact to execute Sellers' delivery documents, attend the documentary closing and effect legal and physical delivery of the Vessel, said document to be notarially attested and legalized by Apostille.
|
(iv) |
|
(v) |
Undertaking that Sellers will provide Buyers as soon as practicable and in any case not later than thirty (30) days from the delivery for the Vessel with an original Deletion Certificate evidencing deletion of the Vessel from NIS Registry.
|
(vi) |
|
(vii) |
Original or copy of written statement of remaining bunkers and unused lubricating oils as on board on delivery.
|
(viii) |
|
(ix) |
|
(x) |
|
(xi) |
|
(xii) |
|
(i) |
Original Resolutions of the Sole Director of the Buyer, approving the purchase of the Vessel and authorization to execute and perform this Agreement, notarially attested and legalized by Apostille.
|
(ii) |
Power of Attorney of the Buyers appointing one or more representatives to act on behalf of the Buyers in the performance of this Agreement, duly notarially attested and legalised by Apostilled.
|
For the Buyers:
|
c/o TMS Offshore Services Ltd.
Athens licensed shipping office
11, Fragkoklissias str.
GR 151 25
Marousi, Athens, Greece
Email:
management@tms-offshore.com
|
|
For the Sellers:
|
Dr. Adriano Cefai
Chairman
5/1, Merchants Street, Valletta VLT1171, MALTA
Email:
info@cefaiadvocates.com
|
|
For and on behalf of the Sellers
|
For and on behalf of the Buyers
|
Dr. Adriano Cefai, L.L.D; L.L.M.
5/1, Merchants Street
Valletta VLT1171
MALTA
|
Dr. Renato Cefai
5/1, Merchants Street
Valletta VLT1171
MALTA
|
|
/s/ Dr. Adriano Cefai, L.L.D;L.L.M.
|
/s/ Prokopios (Akis) Tsirigakis
|
|
Name: Dr. Adriano Cefai
|
Name: Mr. Prokopios (Akis) Tsirigakis
|
|
Title: Chairman of Vega Crusader AS
|
Title: Attorney-in-fact of DARDEN SHIPHOLDING S.A.
|
|
For the Buyer
|
|||
By:
|
/s/ Dimitrios Dreliozis
|
||
Name:
|
Dimitrios Dreliozis
|
||
Title:
|
Attorney-in -fact
|
For the Seller
|
|||
By:
|
/s/
Georgios Kourelis
|
||
Name:
|
Georgios Kourelis
|
||
Title:
|
Attorney-in -fact
|
||
For the Seller's guarantor
|
|||
By:
|
/s/
Georgios Kourelis
|
||
Name:
|
Georgios Kourelis
|
||
Title:
|
Attorney-in -fact
|
||
For the Buyer's guarantor
|
|||
By:
|
/s/ Dimitrios Dreliozis
|
||
Name:
|
Dimitrios Dreliozis
|
||
Title:
|
Vice President-Finance
|
||
Name of Subsidiary
|
Jurisdiction of Incorporation
|
Malvina Shipping Company Limited
|
Malta
|
Samsara Shipping Company Limited
|
Malta
|
Fabiana Navigation Company Limited
|
Malta
|
Karmen Shipping Company Limited
|
Malta
|
Thelma Shipping Company Limited
|
Malta
|
Celine Shipping Company Limited
|
Malta
|
Felicia Navigation Company Limited
|
Malta
|
Zatac Shipping Company Limited
|
Malta
|
Royerton Shipping Company Limited
|
Malta
|
Fago Shipping Company Limited
|
Malta
|
Lancat Shipping Company Limited
|
Malta
|
Hydrogen Shipping Company Limited
|
Malta
|
Helium Shipping Company Limited
|
Malta
|
Platan Shipping Company Limited
|
Malta
|
Madras Shipping Company Limited
|
Malta
|
Tolan Shipping Company Limited
|
Malta
|
Lansat Shipping Company Limited
|
Malta
|
Iguana Shipping Company Limited
|
Malta
|
Selma Shipping Company Limited
|
Malta
|
Onil Shipping Company Limited
|
Malta
|
Borsari Shipping Company Limited
|
Malta
|
Silicon Shipping Company Limited
|
Malta
|
Oxygen Shipping Company Limited
|
Malta
|
Blueberry Shipping Company Limited
|
Malta
|
Annapolis Shipping Company Limited
|
Malta
|
Lidman Maritime Co.
|
Marshall Islands
|
Mador Shipping Ltd.
|
Marshall Islands
|
Lothair Navigation Company
|
Marshall Islands
|
Ialysos Shareholders Limited | Marshall Islands |
Amara Shipping Company
|
Marshall Islands
|
Tempo Marine Co.
|
Marshall Islands
|
Star Record Owning Company Limited
|
Marshall Islands
|
Argo Owning Company Limited
|
Marshall Islands
|
Rea Owning Company Limited
|
Marshall Islands
|
Dione Owning Company Limited
|
Marshall Islands
|
Phoebe Owning Company Limited
|
Marshall Islands
|
Uranus Owning Company Limited
|
Marshall Islands
|
Selene Owning Company Limited
|
Marshall Islands
|
Tethys Owning Company Limited
|
Marshall Islands
|
Aegean Traders Inc.
|
Marshall Islands
|
Aegean Shareholders Inc.
|
Marshall Islands
|
Roscoe Marine Ltd.
|
Marshall Islands
|
Amathus Owning Company Limited
|
Marshall Islands
|
Regina Owners Inc.
|
Marshall Islands
|
Oil Tanker Investments Inc.
|
Marshall Islands
|
Tortuga Owners Inc.
|
Marshall Islands
|
LPG Investments Inc.
|
Marshall Islands
|
VLGC Alpha Owning Ltd.
|
Marshall Islands
|
VLGC Beta Owning Ltd | Marshall Islands |
Drybulk Investments Inc.
|
Marshall Islands
|
Dryships Management Services Inc.
|
Marshall Islands
|
Oil and Gas Ships Investor Limited
|
Marshall Islands
|
Mezzanine Financing Investment III Ltd.
|
Marshall Islands
|
Nautilus Offshore Services Inc.
|
Marshall Islands
|
Nautilus Shareholdings Limited
|
Marshall Islands
|
Dianthus Maritime Ltd.
|
Marshall Islands
|
Fiore Shipping Inc.
|
Marshall Islands
|
Mellen Marine Co.
|
Marshall Islands
|
Darden Shipholding S.A.
|
Marshall Islands
|
Newmont Chartering Limited
|
Marshall Islands
|
Asstplus Limited
|
Cyprus
|
Vega Crusader AS
|
Norway
|
Vega Corona AS
|
Norway
|
Vega Juniz AS
|
Norway
|
Vega Offshore AS
|
Norway
|
Vega Emtoli AS
|
Norway
|
Vega Jaanca AS
|
Norway
|
Vega Inruda AS
|
Norway
|
Creole Offshore AS
|
Norway
|
Jubilee Offshore AS
|
Norway
|
Emblem Offshore AS
|
Norway
|
Jacaranda Offshore AS
|
Norway
|
Indigo Offshore AS
|
Norway
|