Date December 2007 PRIMELEAD LIMITED as Borrower – and – THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders – and – NORDEA BANK FINLAND PLC, LONDON BRANCH as Agent and as Security Trustee LOAN AGREEMENT relating to a credit facility...
Exhibit
4.13
Date December
2007
PRIMELEAD
LIMITED
as
Borrower
–
and –
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1
as
Lenders
–
and –
NORDEA
BANK FINLAND PLC, LONDON BRANCH
as
Agent
and
as Security Trustee
relating
to a credit
facility
of up to US$260,000,000
Xxxxxx,
Xxxxxx & Xxxxxxxx
London
INDEX
| Clause | Page | |
|
1
|
INTERPRETATION
|
1
|
|
2
|
FACILITY
|
14
|
|
3
|
POSITION
OF THE LENDERS AND THE MAJORITY LENDERS
|
14
|
|
4
|
DRAWDOWN
|
16
|
|
5
|
INTEREST
|
17
|
|
6
|
INTEREST
PERIODS
|
20
|
|
7
|
DEFAULT
INTEREST
|
20
|
|
8
|
REPAYMENT
AND PREPAYMENT
|
21
|
|
9
|
CONDITIONS
PRECEDENT
|
23
|
|
10
|
REPRESENTATIONS
AND WARRANTIES
|
24
|
|
11
|
GENERAL
UNDERTAKINGS
|
25
|
|
12
|
CORPORATE
UNDERTAKINGS
|
28
|
|
13
|
SECURITY
COVER
|
30
|
|
14
|
PAYMENTS
AND CALCULATIONS
|
31
|
|
15
|
APPLICATION
OF RECEIPTS
|
33
|
|
16
|
EARNINGS
|
33
|
|
17
|
EVENTS
OF DEFAULT
|
34
|
|
18
|
FEES
AND EXPENSES
|
38
|
|
19
|
INDEMNITIES
|
39
|
|
20
|
NO
SET-OFF OR TAX DEDUCTION
|
41
|
|
21
|
ILLEGALITY,
ETC
|
42
|
|
22
|
INCREASED
COSTS
|
44
|
|
23
|
SET
OFF
|
45
|
|
24
|
TRANSFERS
AND CHANGES IN LENDING OFFICES
|
46
|
|
25
|
VARIATIONS
AND WAIVERS
|
49
|
|
26
|
NOTICES
|
50
|
|
27
|
SUPPLEMENTAL
|
52
|
|
28
|
LAW
AND JURISDICTION
|
52
|
|
SCHEDULE
1 LENDERS AND COMMITMENTS
|
54
|
|
|
SCHEDULE
2 DRAWDOWN NOTICE
|
55
|
|
|
SCHEDULE
3 CONDITION PRECEDENT DOCUMENTS
|
56
|
|
|
SCHEDULE
4 TRANSFER CERTIFICATE
|
58
|
|
|
SCHEDULE
5 FORM OF COMPLIANCE CERTIFICATE
|
62
|
|
|
SCHEDULE
6 MANDATORY COST FORMULA
|
63
|
|
|
EXECUTION
PAGE
|
66
|
|
THIS LOAN AGREEMENT is made on December 2007
BETWEEN:
|
(1)
|
PRIMELEAD LIMITED, as
Borrower;
|
|
(2)
|
THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1, as Lenders;
|
|
(3)
|
NORDEA BANK FINLAND PLC, LONDON
BRANCH, as Agent, Lead Arranger and Book Runner;
and
|
|
(4)
|
NORDEA BANK FINLAND PLC, LONDON
BRANCH, as Security Trustee.
|
WHEREAS the Lenders have
agreed, subject to the term of this Agreement, to make available to the Borrower
a credit facility of up to US$260,000,000 to finance its acquisition of
51,778,647 shares in the common stock of Ocean Rig ASA, listed on the Oslo Børs,
and to pay fees and expenses incurred in connection with such credit
facility.
IT IS AGREED as
follows:
|
1
|
INTERPRETATION
|
|
1.1
|
Definitions. Subject
to Clause 1.5, in this Agreement (including the
Recitals):
|
“Account Security Deed” means a
deed creating security in respect of the Earnings Account and the Deposit
Account executed or to be executed by the Borrower in favour of the Security
Trustee in such form as the Lenders may agree or require;
“Adjusted Equity” means, as of
any Compliance Date, the value of the stockholders’ equity of the Group
determined on a consolidated basis in accordance with GAAP and as shown in the
consolidated balance sheets for the Group in the Applicable Accounts, adjusted
by adding or subtracting (depending on whether the same is positive or negative)
any difference between:
|
|
(a)
|
the
value of Total Assets determined on a consolidated basis in accordance
with GAAP and as shown in such consolidated balance sheets;
and
|
|
|
(b)
|
the
Market Value Adjusted Total Assets;
|
“Advance” means the
principal amount of any borrowing by the Borrower under this
Agreement;
“Affected
Lender” has the meaning given in Clause 5.5;
“Agency and Trust
Deed” means the agency and trust deed dated the same date as
this Agreement and made between the Borrower, the Lenders, the Agent and the
Security Trustee;
“Agent” means Nordea
Bank Finland Plc, London Branch, in its capacity as agent for the Lenders under
this Agreement and the other Finance Documents, acting through its office at 0xx
Xxxxx, Xxxx Xxxxx House, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, or
any successor of it appointed under clause 5 of the Agency and Trust
Deed;
1
“Applicable Accounts” means, in relation
to a Compliance Date or an accounting period, the consolidated balance sheets
and related consolidated statements of stockholders’ equity, income and cash
flows of the Group set out in the annual financial statements or interim
financial statements of the Group prepared as of the Compliance Date or, as the
case may be, the last day of the accounting period in question (and which the
Borrower is obliged to deliver to the Agent pursuant to Clause
11.6);
“Approved
Broker” means each of Braemar Seascope Shipbrokers Ltd., X.
Xxxxxxxx & Company Limited, Xxxxx Xxxxxxxx Xxxxxx X.X., X.X. Xxxxxx
Shipbrokers A.S., X.X. Xxxxxx AS, Arrow Sale & Purchase (UK) Ltd., Xxxxxxx
Xxxxxx & Xxxxx, Fearnley AS and Maersk Shipbrokers;
“Availability
Period” means, subject to the provisions of Clause 9.1, the
period commencing on the date of this Agreement and ending on:
|
|
(a)
|
30
June 2008 (or such later date as the Agent, with the authorisation of the
Majority Lenders, may agree with the Borrower);
or
|
|
|
(b)
|
if
earlier, the date on which the Total Commitments are fully borrowed,
cancelled or terminated;
|
“Borrower” means PRIMELEAD LIMITED, a company incorporated
in Cyprus whose registered office is at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx (and
any successor);
“Business Day” means
a day on which banks are open in London, Oslo and Athens and, in respect of a
day on which a payment is required to be made under a Finance Document, also in
New York City;
“Commitment” means,
in relation to a Lender, the amount set opposite its name in Schedule 1, or, as
the case may require, the amount specified in the relevant Transfer Certificate,
as that amount may be reduced, cancelled or terminated in accordance with this
Agreement (and “Total
Commitments” means the aggregate of the Commitments of all the
Lenders);
“Compliance Date” means 30 June
and 31 December in each calendar year (or such other dates as of which the Group
prepares the consolidated financial statements which it is required to deliver
pursuant to Clause 11.6);
“Contractual
Currency” has the meaning given in Clause 19.5;
“Contribution” means,
in relation to a Lender, the part of the Loan which is owing to that
Lender;
“Creditor
Party” means the Agent, the Security Trustee or any Lender
whether as at the date of this Agreement or at any later time;
“Dollars” and “$” means the lawful
currency for the time being of the United States of America;
2
“Drawdown
Date” means, in relation to the Advance, the date requested by
the Borrower for such Advance to be made, or (as the context may require) the
date on which such Advance is actually made being not later than 30 June
2008;
“Drawdown
Notice” means a notice in the form set out in Schedule 2 (or
in any other form which the Agent approves or reasonably requires);
“Deposit
Account” means an NOK account in the name of the Borrower with
the Security Trustee in London, designated “PRIMELEAD LIMITED - Deposit Account”
or, any other account (with that or another office of the Security Trustee or
with a bank or financial institution other than the Security Trustee) which is
designated by the Security Trustee as the Deposit Account for the purposes of
this Agreement;
“Earnings” means
all dividends, interest and other moneys paid or payable after the date of this
Deed on all or any of the Ocean Rig Shares and all rights accruing at any time
to or in respect of all or any of the Ocean Rig Shares (including, without
limitation, put and call options, pre-emption rights and any proceeds of sale or
other realisation of all or any part of the Ocean Rig Shares) ,
“Earnings
Account” means a US Dollar account in the name of the Borrower
with the Security Trustee in London, designated “PRIMELEAD LIMITED - Earnings
Account” or, any other account (with that or another office of the Security
Trustee or with a bank or financial institution other than the Security Trustee)
which is designated by the Security Trustee as the Earnings Account for the
purposes of this Agreement;
“EBITDA” means, for
any accounting period, the consolidated net income of the Group for that
accounting period:
|
(a)
|
plus,
to the extent deducted in computing consolidated net income of the Group
for that accounting period, the sum, without duplication,
of:
|
|
(i)
|
all
federal, state, local and foreign taxes and tax
distributions;
|
|
(ii)
|
Net
Interest Expenses; and
|
|
(iii)
|
depreciation,
depletion, amortisation of intangibles and other non-cash charges or
non-cash losses (including non-cash transaction expenses and the
amortisation of debt discounts) and any extraordinary losses not incurred
in the ordinary course of business;
|
|
(b)
|
minus,
to the extent added in computing consolidated net income of the Group for
that accounting period, any non-cash income or non-cash gains and any
extraordinary gains not incurred in the ordinary course of
business;
|
all
determined on a consolidated basis in accordance with GAAP and as shown in the
consolidated statements of income for the Group in the Applicable
Accounts;
“Event of
Default” means any of the events or circumstances described in
Clause 17.1;
“Fair Market
Value” means, the fair value of the Ocean Rig Shares, as
determined in accordance with Clause 13.3;
3
“Finance
Documents” means:
|
|
(a)
|
this
Agreement;
|
|
|
(b)
|
the
Agency and Trust Deed;
|
|
|
(c)
|
the
Guarantee;
|
|
|
(d)
|
the
Shares Pledge;
|
|
|
(e)
|
the
Account Security Deed;
|
|
|
(f)
|
any
other document (whether creating a Security Interest or not) which is
executed at any time by the Borrower or any other person as security for,
or to establish any form of subordination or priorities arrangement in
relation to, any amount payable to the Lenders under this Agreement or any
of the other documents referred to in this
definition;
|
“Financial
Indebtedness” means, in relation to a person (the “debtor”), a liability of the
debtor:
|
|
(a)
|
for
principal, interest or any other sum payable in respect of any moneys
borrowed or raised by the debtor;
|
|
|
(b)
|
under
any loan stock, bond, note or other security issued by the
debtor;
|
|
|
(c)
|
under
any acceptance credit, guarantee or letter of credit facility (or any
dematerialised equivalent) made available to the
debtor;
|
|
|
(d)
|
under
a financial lease, a deferred purchase consideration arrangement or any
other agreement having the commercial effect of a borrowing or raising of
money by the debtor;
|
|
|
(e)
|
under
any foreign exchange transaction, any interest or currency swap or any
other kind of derivative transaction entered into by the debtor or, if the
agreement under which any such transaction is entered into requires
netting of mutual liabilities, the liability of the debtor for the net
amount; or
|
|
|
(f)
|
under
a guarantee, indemnity for loss or otherwise or similar obligation entered
into by the debtor in respect of a liability of another person which would
fall within paragraphs (a) to (e) if the references to the debtor referred
to the other person;
|
“Financial
Year” means in relation to the Group, each period of 1 year
commencing on 1 January in respect of which its consolidated accounts are or
ought to be prepared;
“Fleet
Vessels” means together all of the vessels from time to time
owned by members of the Group;
“GAAP” means generally accepted
accounting principles as from time to time in effect in the United States of
America;
4
“Group” means the
Guarantor and its subsidiaries (whether direct or indirect and including, but
not limited to, the Borrower) from time to time during the Security Period and
“member of the Group”
shall be construed accordingly;
“Guarantee” means
each guarantee of the liabilities of the Borrower under the Finance Documents to
which it is a party made or to be made between the Guarantor and the Security
Trustee in such form as the Lenders may agree or require and in the plural means
all of them;
“Guarantor” means
Dryships Inc., a company incorporated under the laws of the Xxxxxxxx Islands
with its registered office at Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000. and listed on the NASDAQ exchange in
the United States of America;
“Interest Coverage
Ratio” means, in relation to a Compliance Date or an
accounting period, the ratio of (a) EBITDA for the most recent financial period
of the Group ending on the Compliance Date to (b) the Net Interest Expenses for
that financial period (calculated on a trailing 12-months basis);
“Interest
Period” means, in relation to the Advance, a period determined
in accordance with Clause 6;
“Lender” means a
bank or financial institution listed in the Schedule 1 and acting through its
branch indicated in Schedule 1 (or through another branch notified to the
Borrower under Clause 24.15) or its transferee, successor or
assign;
“LIBOR” means, in relation to
any amount and for any period, the offered rate (if any) for deposits of Dollars
for such amount and for such period which is:
(a) the
rate for such period appearing on Reuters page LIBOR01 (British Bankers’
Association Interest Settlement Rates) (or such other page as may replace such
page being designed by the British Bankers’ Association to calculate the BBA
Interest Settlement Rate (as defined in the British Bankers’ Association’s
Recommended Terms and Conditions (“BBAIRS” terms))) at or about 11:00am (London
time) on the Quotation Date such period; or
(b) if
on such date no such rate is displayed, the arithmetic mean of the rate quoted
to the Agent by the Reference Banks at the request of the Agent as the Reference
Banks’ offered rate for deposits of Dollars in an amount equal or approximately
equal to such period to prime banks in the London Interbank Market at or about
11:00 am (London time) on the Quotation Date for such period;
“Liquid Funds” means, in
respect of any relevant period, the aggregate of the Group’s consolidated (i)
cash in hand; (ii) deposits in banks or financial institutions; (iii) debt
securities rated AA/Aa2 or better by either Standard & Poor’s Ratings Group
or Xxxxx’x Investors Service, Inc; or (iv) any other instrument approved by the
Lender, all of which shall be free of any Security Interest;
“Loan” means the
principal amount for the time being outstanding under this
Agreement;
5
“Majority
Lenders” means Lenders whose Commitments total 66.6 per cent.
of the Total Commitments;
“Mandatory Cost” means the
percentage rate per annum calculated by the Agent in accordance with Schedule
6;
“Margin” means, one
and a half per cent (1.5%) per annum;
“Market Adjusted Equity
Ratio” means, in relation to a Compliance Date, the ratio of
(a) the Adjusted Equity for the most recent financial period of the Group ending
on the Compliance Date to (b) the aggregate of (i) Total Interest Bearing
Liabilities and (ii) Adjusted Equity for that financial period;
“Market
Value” means, in relation to each Fleet Vessel, the market
value thereof calculated at any date by taking the arithmetic mean of two
valuations each prepared: as at a date not more than 15 days previously; by an
Approved Broker appointed by the Agent with the valuations being addressed to
the Agent; with or without physical inspection of Fleet Vessel (as the Agent may
require); on the basis of a sale for prompt delivery for cash on normal arm's
length commercial terms as between a willing seller and a willing buyer; free of
any existing charter or other contract of employment; and after deducting the
estimated amount of the usual and reasonable expenses which would be incurred in
connection with the sale.
Provided that the Agent may
obtain additional valuations from any Approved Broker to be prepared in
accordance with this paragraph if, in the opinion of the Agent, circumstances
require an additional valuation and the Market Value of a Ship will be the
arithmetic mean of all such valuations;
“Market Value Adjusted Net
Worth” means Paid-Up Capital plus General Reserves plus Retained Earnings
adjusted to reflect the difference between the book values of the Fleet Values
and the Market Values of all Fleet Vessels at any relevant time;
“Market Value Adjusted Total
Assets” means, at any time, Total Assets adjusted to reflect
the Market Value of all Fleet Vessels;
“Negotiation
Period” has the meaning given in Clause 5.8;
“Net Interest
Expenses” means, as of any Compliance Date, the aggregate of
all interest, commitment and other fees, commissions, discounts and other costs,
charges or expenses accruing due from all the members the Group during that
accounting period less interest income received, determined on a consolidated
basis in accordance with GAAP and as shown in the consolidated statements of
income for the Group in the Applicable Accounts;
“NOK” means the
lawful currency for the time being of the Kingdom of Norway:
“Notifying
Lender” has the meaning given in Clause 21.1 or Clause
22.1 as the context requires;
“Ocean Rig Shares” means
51,778,647 shares in the common stock of Ocean Rig ASA, listed on the Oslo Børs
to be purchased by the Borrower from the Sellers pursuant to a Sale and Purchase
Agreement dated 6 December 2007.
6
“Paid-Up Capital”, “General Reserves” and “Retained Earnings” have the meanings
ascribed to them in the Applicable Accounts;
“Payment
Currency” has the meaning given in Clause 19.5;
“Permitted Security
Interests” means:
|
|
(a)
|
Security
Interests created by the Finance
Documents;
|
|
|
(b)
|
Security
Interests arising by operation of law in respect of taxes which are not
overdue for payment other than taxes being contested in good faith by
appropriate steps and in respect of which appropriate reserves have been
made;
|
“Pertinent
Document” means
|
|
(a)
|
any
Finance Document; and
|
|
|
(b)
|
any
other document contemplated by or referred to in any Finance Document;
and
|
any
document which has been or is at any time sent by or to the Agent or the
Security Trustee in contemplation of or in connection with any Finance Document
or any policy, contract or document falling within paragraphs (b);
“Pertinent
Jurisdiction”, in relation to a company, means:
|
|
(a)
|
England
and Wales;
|
|
|
(b)
|
the
country under the laws of which the company is incorporated or
formed;
|
|
|
(c)
|
a
country in which the company has the centre of its main interests or in
which the company’s central management and control is or has recently been
exercised;
|
|
|
(d)
|
a
country in which the overall net income of the company is subject to
corporation tax, income tax or any similar
tax;
|
|
|
(e)
|
a
country in which assets of the company (other than securities issued by,
or loans to, related companies) having a substantial value are situated,
in which the company maintains a branch or a permanent place of business,
or in which a Security Interest created by the company must or should be
registered in order to ensure its validity or priority;
and
|
|
|
(f)
|
a
country the courts of which have jurisdiction to make a winding up,
administration or similar order in relation to the company, whether as
main or territorial ancillary proceedings or which would have such
jurisdiction if their assistance were requested by the courts of a country
referred to in paragraphs (b) or
(c);
|
“Pertinent Matter”
means:
|
|
(a)
|
any
transaction or matter contemplated by, arising out of, or in connection
with a Pertinent Document; or
|
7
|
|
(b)
|
any
statement relating to a Pertinent Document or to a transaction or matter
falling within paragraph (a);
|
and
covers any such transaction, matter or statement, whether entered into, arising
or made at any time before the signing of this Agreement or on or at any time
after that signing;
“Potential Event of
Default” means an event or circumstance which, with the giving
of any notice and/or the lapse of time and/or the satisfaction of any condition
and/or a determination of the Majority Lenders would constitute an Event of
Default;
“Purchase
Price” means the purchase price of the Ocean Rig Shares paid
by the Borrower to the Sellers in US Dollars or the US Dollar equivalent in any
other currency;
“Quotation
Date” means, in relation to any Interest Period (or any other
period for which an interest rate is to be determined under any provision of a
Finance Document), the day on which quotations would ordinarily be given by
leading banks in the London Interbank Market for deposits in the currency in
relation to which such rate is to be determined for delivery on the first day of
that Interest Period or other period;
“Relevant
Person” has the meaning given in clause 17.9;
“Repayment
Date” means a date on which a repayment is required to be made
under Clause 8;
“Secured
Liabilities” means all liabilities which the Borrower, the
Security Parties or any of them have, at the date of this Agreement or at any
later time or times, under or by virtue of the Finance Documents or any judgment
relating to the Finance Documents; and for this purpose, there shall be
disregarded any total or partial discharge of these liabilities, or variation of
their terms, which is effected by, or in connection with, any bankruptcy,
liquidation, arrangement or other procedure under the insolvency laws of any
country;
“Security
Interest” means:
|
|
(a)
|
a
mortgage, charge (whether fixed or floating) or pledge or any other lien;
and
|
|
|
(b)
|
any
other arrangement of any kind having the effect of conferring
security;
|
“Security
Party” means the Guarantor, and any other person (except a
Creditor Party) who, as a surety or mortgagor, as a party to any subordination
or priorities arrangement, or in any similar capacity, executes a document
falling within the last paragraph of the definition of “Finance
Documents”;
“Security
Period” means the period commencing on the date of this
Agreement and ending on the date on which the Agent notifies the Borrower, the
Security Parties and the Lenders that:
|
|
(a)
|
all
amounts which have become due for payment by the Borrower or any Security
Party under the Finance Documents have been paid and the Total Commitments
have been reduced to zero;
|
8
|
|
(b)
|
no
amount is owing or has accrued (without yet having become due for payment)
under any Finance Document;
|
|
|
(c)
|
neither
the Borrower nor any Security Party has any future or contingent liability
under Clause 18, 19 or 20 below or any other provision of this
Agreement or another Finance Document;
and
|
|
|
(d)
|
the
Agent, the Security Trustee, and the Majority Lenders do not consider that
there is a significant risk that any payment or transaction under a
Finance Document would be set aside, or would have to be reversed or
adjusted, in any present or possible future bankruptcy of the Borrower or
a Security Party or in any present or possible future proceeding relating
to a Finance Document or any asset covered (or previously covered) by a
Security Interest created by a Finance
Document;
|
“Security
Trustee” means Nordea Bank Finland Plc, London Branch in its
capacity as trustee for the Lenders under this Agreement and the other Finance
Documents, acting through its office at 0xx Xxxxx, Xxxx Xxxxx House, 00
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX or any successor of it appointed
under clause 5 of the Agency and Trust Deed;
“Sellers” means
Cheyne Special Situations Fund LP, Cheyne Global Catalyst Fund LP and Cheyne
Value Fund LP, all being funds managed by Cheyne Capital Management (UK) LLP, a
limited liability company having its registered address at Xxxxxxxxx Xxxxx, 00
Xxxxxxxxx Xxx, Xxxxxx XX0X 0XX, XX;
“Shareholders” means,
Primelead Shareholders Inc., a company incorporated in the Xxxxxxxx Islands
which its registered office at Trust Company Complex, Ajeltake Road, Ajeltake
Island, Majuro, Xxxxxxxx Xxxxxxx XX 00000;
“Shares
Pledge” means the pledge of all of the Ocean Rig Shares and
the VPS Account executed or to be executed by the Borrower in favour of the
Security Trustee in such form as the Lenders shall agree or
require;
“Total Assets” means, as of any
Compliance Date, the aggregate value of all trade debtors and the value of all
stock (valued in accordance with GAAP) and all other investments and other
tangible and intangible assets of the Group properly included in the Applicable
Accounts as “fixed assets” in accordance with GAAP but excluding any assets held
on trust;
“Total Interest Bearing
Liabilities” means, as of any Compliance Date, the consolidated total
amount of the interest bearing Financial Indebtedness of the Group;
“Transfer
Certificate” has the meaning given in Clause
24.2;
“Trust Property” has
the meaning given in clause 3.1 of the Agency and Trust Deed;
“VPS Account” means
the account opened by the Borrower with the Norwegian Central Securities
Depository in Norway (account number 06001.0000000) including, without
limitation, all securities from time to time registered on that
account).
9
|
1.2
|
Construction of certain
terms. In this
Agreement:
|
“administration
notice” means a notice appointing an administrator, a notice
of intended appointment and any other notice which is required by law (generally
or in the case concerned) to be filed with the court or given to a person prior
to, or in connection with, the appointment of an administrator;
“approved” means,
for the purposes of Clause 17, approved in writing by the Agent;
“asset” includes
every kind of property, asset, interest or right, including any present, future
or contingent right to any revenues or other payment;
“company” includes
any partnership, joint venture and unincorporated association;
“consent” includes
an authorisation, consent, approval, resolution, licence, exemption, filing,
registration, notarisation and legalisation;
“contingent
liability” means a liability which is not certain to arise
and/or the amount of which remains unascertained;
“document” includes
a deed; also a letter or fax;
“expense” means any
kind of cost, charge or expense (including all legal costs, charges and
expenses) and any applicable value added or other tax;
“law” includes any
form of delegated legislation, any order or decree, any treaty or international
convention and any regulation or resolution of the Council of the European
Union, the European Commission, the United Nations or its Security
Council;
“legal or administrative
action” means any legal proceeding or arbitration and any
administrative or regulatory action or investigation;
“liability” includes
every kind of debt or liability (present or future, certain or contingent),
whether incurred as principal or surety or otherwise;
“months” shall be
construed in accordance with Clause 1.3;
“parent company” has
the meaning given in Clause 1.4;
“person” includes
any company; any state, political sub-division of a state and local or municipal
authority; and any international organisation;
“regulation” includes
any regulation, rule, official directive, request or guideline whether or not
having the force of law of any governmental, intergovernmental or supranational
body, agency, department or regulatory, self-regulatory or other authority or
organisation;
“subsidiary” has the
meaning given in Clause 1.4;
10
“successor” includes
any person who is entitled (by assignment, novation, merger or otherwise) to any
other person’s rights under this Agreement or any other Finance Document (or any
interest in those rights) or who, as administrator, liquidator or otherwise, is
entitled to exercise those rights; and in particular references to a successor
include a person to whom those rights (or any interest in those rights) are
transferred or pass as a result of a merger, division, reconstruction or other
reorganisation of it or any other person;
“tax” includes any
present or future tax, duty, impost, levy or charge of any kind which is imposed
by any state, any political sub-division of a state or any local or municipal
authority (including any such imposed in connection with exchange controls), and
any connected penalty, interest or fine; and
|
1.3
|
Meaning of “month”. A
period of one or more “months” ends on the day in the relevant calendar
month numerically corresponding to the day of the calendar month on which
the period started (“the
numerically corresponding day”),
but:
|
|
(a)
|
on
the Business Day following the numerically corresponding day if the
numerically corresponding day is not a Business Day or, if there is no
later Business Day in the same calendar month, on the Business Day
preceding the numerically corresponding day;
or
|
|
(b)
|
on
the last Business Day in the relevant calendar month, if the period
started on the last Business Day in a calendar month or if the last
calendar month of the period has no numerically corresponding
day;
|
and
“month” and “monthly” shall be construed
accordingly.
|
1.4
|
Meaning of
“subsidiary”. A company (S) is a subsidiary of another
company (P) if:
|
|
(a)
|
a
majority of the issued shares in S (or a majority of the issued shares in
S which carry unlimited rights to capital and income distributions) are
directly owned by P or are indirectly attributable to P;
or
|
|
(b)
|
P
has direct or indirect control over a majority of the voting rights
attaching to the issued shares of S;
or
|
|
(c)
|
P
has the direct or indirect power to appoint or remove a majority of the
directors of S; or
|
|
(d)
|
P
otherwise has the direct or indirect power to ensure that the affairs of S
are conducted in accordance with the wishes of
P;
|
and
any company of which S is a subsidiary is a parent company of S.
|
1.5
|
General
Interpretation.
|
In
this Agreement:
|
(a)
|
references
in Clause 1.1 to a Finance Document or any other document being in agreed
form are to a document in the form attached to a certificate dated the
same date as or after this Agreement, which states that that form is the
agreed form of the relevant document for the purposes of this Agreement,
and which is signed by the Borrower and the Agent on behalf of the
Security Parties and include references to that form with such
modifications as the Agent (with the authorisation of the Majority Lenders
in the case of substantial modifications) approves or reasonably
requires;
|
11
|
(b)
|
references
to, or to a provision of, a Finance Document or any other document are
references to it as amended or supplemented, whether before the date of
this Agreement or otherwise;
|
|
(c)
|
references
to, or to a provision of, any law include any amendment, extension,
re-enactment or replacement, whether made before the date of this
Agreement or otherwise;
|
|
(d)
|
words
denoting the singular number shall include the plural and vice versa;
and
|
|
1.6
|
Headings. In
interpreting a Finance Document or any provision of a Finance Document,
all clause, sub-clause and other headings in that and any other Finance
Document shall be entirely
disregarded.
|
|
2
|
FACILITY
|
|
2.1
|
Amount of
facility. Subject to the other provisions of this
Agreement, the Lenders agree to make available to the Borrower, during the
Availability Period, a credit facility in an amount not exceeding the
lesser of, at the date of the Advance: (i) $260,000,000; or (ii) sixty per
cent (60%) of the Purchase Price; or (iii) seventy-five per cent (75%) of
the Fair Market Value of the Ocean Rig
Shares.
|
|
2.2
|
Lenders’ participations in
Advances. Subject to the other provisions of this
Agreement, each Lender shall participate in the Advance in the proportion
which, as at the Drawdown Date, its Commitment bears to the Total
Commitments.
|
|
2.3
|
Purpose of
Advance. The Borrower undertakes with each Creditor
Party to use the Advance only for the purpose stated in the preamble to
this Agreement.
|
|
3
|
POSITION
OF THE LENDERS AND THE MAJORITY
LENDERS
|
|
3.1
|
Interests of Lenders
several. The rights of the Lenders under this Agreement
are several.
|
|
3.2
|
Individual Lender’s right of
action. Each Lender shall be entitled to xxx for any
amount which has become due and payable by the Borrower to it under this
Agreement without joining the Agent, the Security Trustee or any other
Lender as additional parties in the
proceedings.
|
|
3.3
|
Proceedings requiring Majority
Lenders’ consent. Except as provided in clause 3.2, no
Lender may commence proceedings against the Borrower or any Security Party
in connection with a Finance Document without the prior consent of the
Majority Lenders.
|
|
3.4
|
Obligations
Several. The obligations of the Lenders under this
Agreement are several; and a failure of a Lender to perform its
obligations under this Agreement shall not result
in:
|
|
(a)
|
the
obligations of the other Lenders being increased;
or
|
|
(b)
|
the
Borrower, any Security Party or any other Lender being discharged (in
whole or in part) from its obligations under any Finance Document; and in
no circumstances shall a Lender have any responsibility for a failure of
another Lender to perform its obligations under this
Agreement.
|
12
|
3.5
|
Security Trustee as joint and
several creditor.
|
|
(a)
|
The
Borrower and each of the Creditor Parties agrees that the Security Trustee
shall be the joint creditor together with each other Creditor Party of
each liability and obligation of the Borrower towards any Creditor Party
under any Finance Document, and that accordingly the Security Trustee will
have its own independent right to demand performance by the Borrower of
those liabilities and obligations. However, any discharge of
any liability or obligation of the Borrower to one of the Security Trustee
or another Creditor Party shall, to the same extent, discharge the
corresponding liability or obligation owing to the
other.
|
|
(b)
|
Without
limiting or affecting the Security Trustee’s rights against the Borrower
(whether under this paragraph or under any other provision of the Finance
Documents), the Security Trustee agrees with each other Creditor Party (on
a several and separate basis) that, subject as set out in the next
sentence, it will not exercise its rights as a joint creditor with a
Creditor Party except with the consent of the relevant Creditor
Party. However, for the avoidance of doubt, nothing in the
previous sentence shall in any way limit the Security Trustee’s right to
act in the protection or preservation of rights under or to enforce any
Finance Document (or to do any act reasonably incidental to any of the
foregoing).
|
|
(c)
|
Subject
to the provisions of this Clause 3.5, the Security Trustee holds any
security created by a Finance Document in its name and the Security
Trustee shall have full and unrestricted title to and authority in respect
of that security, subject always to the terms of the Finance
Documents
|
|
4
|
DRAWDOWN
|
|
4.1
|
Request for Advance.
Subject to the following conditions and the provisions of Clause
9.1, the Borrower may request the Advance to be made by ensuring that the
Agent receives a completed Drawdown Notice not later than 11.00 a.m.
(London time) two Business Days’ prior to the intended Drawdown
Date.
|
|
4.2
|
Availability. The
conditions referred to in Clause 4.1 are
that:
|
|
(a)
|
a
Drawdown Date has to be a Business Day during the Availability
Period;
|
|
(b)
|
the
amount of the Advance shall not exceed the Total Commitments at any
relevant time;
|
|
(c)
|
only
one Advance shall be made.
|
|
4.3
|
Notification to Lenders of
receipt of a Drawdown Notice. The Agent shall promptly
notify the Lenders that it has received a Drawdown Notice and shall inform
each Lender of:
|
|
(a)
|
the
amount of the Advance and the Drawdown
Date;
|
|
(b)
|
the
amount of that Lender’s participation in the Advance;
and
|
13
|
(c)
|
the
duration of the first Interest Period;
and
|
|
(d)
|
the
purpose of such Advance.
|
|
4.4
|
Drawdown Notice
irrevocable. The Drawdown Notice must be signed by an
authorised signatory of the Borrower and, once served, the Drawdown Notice
cannot be revoked without the prior consent of the Agent, acting with the
authorisation of the Majority
Lenders.
|
|
4.5
|
Lenders to make available
Contributions. Subject to the provisions of this
Agreement, each Lender shall make available to the Agent, on and with
value on each Drawdown Date, the amount due from that Lender on that
Drawdown Date under Clause 2.2.
|
|
4.6
|
Disbursement of
Advances. Subject to the provisions of this Agreement,
the Agent shall on the Drawdown Date pay to the Borrower the amounts which
the Agent receives from the Lenders under Clause 4.5; and that payment to
the Borrower shall be made:
|
|
(a)
|
to
the account which the Borrower specifies in the Drawdown Notice;
and
|
|
(b)
|
in
the like funds as the Agent received the payments from the
Lenders.
|
A
payment by the Agent under this Clause shall constitute the making of an
Advance, and the Borrower shall thereupon become indebted, as principal and
direct obligor, to each Lender in amount equal to that Lender’s
Contribution.
|
5
|
INTEREST
|
|
5.1
|
Payment of normal
interest. Subject to the provisions of this Agreement,
interest on each Advance in respect of each Interest Period shall be paid
by the Borrower on the last day of that Interest
Period.
|
|
5.2
|
Normal rate of
interest. Subject to the provisions of this Agreement,
the rate of interest on an Advance in respect of an Interest Period shall
be the aggregate of the Margin, the Mandatory Cost (if any) and LIBOR for
that Interest Period and the Agent shall calculate and confirm to the
Borrower the Margin on the first day of each Interest Period, and such
Margin shall apply until the next Interest Period, and in the absence of
any such certification, the Borrower may request the Agent to provide the
same and the Agent’s failure to notify the Borrower hereunder shall not
affect the Borrower’s obligation to pay the appropriate interest at any
time.
|
|
5.3
|
Payment of accrued
interest. In the case of an Interest Period longer than
3 months, accrued interest shall be paid every 3 months during that
Interest Period and on the last day of that Interest
Period.
|
|
5.4
|
Notification of Interest
Periods and rates of normal interest. The Agent shall
notify the Borrower and each Lender
of:
|
|
(a)
|
each
rate of interest; and
|
|
(b)
|
the
duration of each Interest Period;
|
as
soon as reasonably practicable after each is determined.
14
|
5.5
|
Market
disruption. The following provisions of this Clause 5
apply if:
|
|
(a)
|
no
rate is quoted on Reuters Page Libor 01 and the Agent is unable, before
1.00 p.m. (London time) on the Quotation Date for an Interest Period, to
fix LIBOR; or
|
|
(b)
|
at
least 1 Business Day before the start of an Interest Period, Lenders
having Contributions together amounting to more than 50 per cent. of the
Loan (or, if the Loan has not been advanced, Commitments amounting to more
than 50 per cent. of the Total Commitments) notify the Agent that LIBOR
fixed by the Agent would not accurately reflect the cost to those Lenders
of funding their respective Contributions (or any part of them) during
that Interest Period in the London Interbank Market at or about 11.00 a.m.
(London time) on the Quotation Date for that Interest Period;
or
|
|
(c)
|
at
least 1 Business Day before the start of an Interest Period, the Agent is
notified by a Lender (the “Affected Lender”) that
for any reason it is unable to obtain Dollars in the London Interbank
Market in order to fund its Contribution (or any part of it) during that
Interest Period.
|
|
5.6
|
Notification of market
disruption. The Agent shall promptly notify the Borrower
and each of the Lenders stating the circumstances falling within Clause
5.5 which have caused its notice to be
given.
|
|
5.7
|
Suspension of
drawdown. If the Agent’s notice under Clause 5.6 is
served before an Advance is made:
|
|
(a)
|
in
a case falling within paragraphs (a) or (b) of Clause 5.5, the Lenders’
obligations to make available the Advance;
and
|
|
(b)
|
in
a case falling within paragraph (c) of Clause 5.5, the Affected Lender’s
obligation to participate in the
Advance;
|
shall
be suspended while the circumstances referred to in the Agent’s notice
continue.
|
5.8
|
Negotiation of alternative rate
of interest. If the Agent’s notice under Clause 5.6 is
served after an Advance is made, the Borrower, the Agent and the Lenders
or (as the case may be) the Affected Lender shall use reasonable
endeavours to agree, within the 15 days after the date on which the Agent
serves its notice under Clause 5.6 (the “Negotiation Period”), an
alternative interest rate or (as the case may be) an alternative basis for
the Lenders or (as the case may be) the Affected Lender to fund or
continue to fund their or its Contribution to such Advance during the
Interest Period concerned.
|
|
5.9
|
Application of agreed
alternative rate of interest. Any alternative interest
rate or an alternative basis which is agreed during the Negotiation Period
shall take effect in accordance with the terms
agreed.
|
|
5.10
|
Alternative rate of interest in
absence of agreement. If an alternative interest rate or
alternative basis is not agreed within the Negotiation Period, and the
relevant circumstances are continuing at the end of the
Negotiation Period, then the Agent shall, with the agreement of each
Lender or (as the case may be) the Affected Lender, set an interest period
and interest rate representing the cost of funding of the Lenders or (as
the case may be) the Affected Lender in Dollars or in any available
currency of their or its Contribution plus the Mandatory Cost (if any) and
the Margin; and the procedure provided for by this Clause 5.10 shall be
repeated if the relevant circumstances are continuing at the end of the
interest period so set by the
Agent.
|
15
|
5.11
|
Notice of
prepayment. If the Borrower does not agree with an
interest rate set by the Agent under Clause 5.10, the Borrower may give
the Agent not less than 15 Business Days’ notice of its intention to
prepay the Loan and/or the relevant Advance or the Contribution of the
Affected Lender at the end of the interest period set by the
Agent.
|
|
5.12
|
Prepayment; termination of
Commitments. A notice under Clause 5.11 shall be
irrevocable; the Agent shall promptly notify the Lenders or (as the case
may require) the Affected Lender of the Borrower’s notice of intended
prepayment; and:
|
|
(a)
|
on
the date on which the Agent serves that notice, the Total Commitments or
(as the case may require) the Commitment of the Affected Lender shall be
cancelled; and
|
|
(b)
|
on
the last Business Day of the interest period set by the Agent, the
Borrower shall prepay (without premium or penalty) the Loan and/or the
relevant Advance, or, as the case may be, the Affected Lender’s
Contribution, together with accrued interest thereon at the applicable
rate plus the Margin and the Mandatory Cost (if
any).
|
|
5.13
|
Application of
prepayment. The provisions of Clause 8 shall apply in
relation to the prepayment.
|
|
6
|
INTEREST
PERIODS
|
|
6.1
|
Commencement of Interest
Periods. The first Interest Period for each Advance
shall commence on the Drawdown Date in respect thereof and each subsequent
Interest Period shall commence on the expiry of the preceding Interest
Period.
|
|
6.2
|
Duration of normal Interest
Periods. Subject to Clause 6.3 each Interest Period
shall be:
|
|
(a)
|
1
(but subject to a maximum of 2 such 1 month Interest Periods in each
year), 3 or 6 months as notified by the Borrower to the Agent not later
than 11.00 a.m. (London time) 3 Business Days before the commencement of
that Interest Period; or
|
|
(b)
|
3
months if the Borrower fails to notify the Agent by the time specified in
paragraph (a); or
|
|
(c)
|
such
longer period as the Agent may, with the authorisation of the Lenders,
agree with the Borrower.
|
|
6.3
|
Duration of Interest Periods
for repayment instalments. In respect of an amount due
to be repaid under Clause 8 on a particular Repayment Date, an Interest
Period shall end on that Repayment
Date.
|
|
7
|
DEFAULT
INTEREST
|
|
7.1
|
Payment of default interest on
overdue amounts. The Borrower shall pay interest in
accordance with the following provisions of this Clause 7 on any amount
payable by the Borrower under any Finance Document which the Agent, the
Security Trustee or the other designated payee does not receive on or
before the relevant date, that is:
|
16
|
(a)
|
the
date on which the Finance Documents provide that such amount is due for
payment; or
|
|
(b)
|
if
a Finance Document provides that such amount is payable on demand, the
date on which the demand is served;
or
|
|
(c)
|
if
such amount has become immediately due and payable under Clause 17.4, the
date on which it became immediately due and
payable.
|
|
7.2
|
Rate of default
interest. Interest shall accrue on an overdue amount
from (and including) the relevant date until the date of actual payment
(as well after as before judgment) at the rate per annum determined by the
Agent to be 2 per cent. above:
|
|
(a)
|
in
the case of an overdue amount of principal, the higher of the rates set
out at Clauses 7.3(a) and (b); or
|
|
(b)
|
in
the case of any other overdue amount, the rate set out at Clause
7.3(b).
|
|
7.3
|
Calculation of default rate of
interest. The rates referred to in Clause 7.2
are:
|
|
(a)
|
the
rate applicable to the overdue principal amount immediately prior to the
relevant date (but only for any unexpired part of any then current
Interest Period);
|
|
(b)
|
the
aggregate of the Margin and the Mandatory Cost (if any) plus, in respect
of successive periods of any duration (including at call) up to 3 months
which the Agent may select from time to
time;
|
|
|
(i)
|
LIBOR;
or
|
|
|
(ii)
|
if
the Agent determines that Dollar deposits for any such period are not
being made available to any Lender by leading banks in the London
Interbank Market in the ordinary course of business, a rate from time to
time determined by the Agent by reference to the cost of funds to the
Lenders from such other sources as the Agent (after consultation with the
Lenders) may from time to time
determine.
|
|
7.4
|
Notification of interest
periods and rates of default interest. The Agent shall
promptly notify the Lenders and the Borrower of each interest rate
determined by the Agent under Clause 7.3 and of each period selected by
the Agent for the purposes of paragraph (b) of that Clause but this shall
not be taken to imply that the Borrower is liable to pay such interest
only with effect from the date of the Agent’s
notification.
|
|
7.5
|
Payment of accrued default
interest. Subject to the other provisions of this
Agreement, any interest due under this Clause shall be paid on the last
day of the period by reference to which it was determined and the payment
shall be made to the Agent for the account of the Creditor Party to which
the overdue amount is due.
|
|
7.6
|
Compounding of default
interest. Any such interest which is not paid at the end
of the period by reference to which it was determined shall thereupon be
compounded.
|
|
8
|
REPAYMENT
AND PREPAYMENT
|
|
8.1
|
Repayment of
Facility. The Loan shall be repaid in accordance with
the following provisions of this Clause 8.1 so
that:
|
17
|
(a)
|
the
Loan shall be repaid by 8 equal instalments of one sixteenth (1/16th) of
the Advance commencing on the date falling three months after the Drawdown
Date and every three (3) months thereafter up to and including the second
anniversary of the Drawdown Date, when a “bullet” payment representing
balance of the Loan and all other amounts howsoever arising under this
Agreement and the Finance Documents will be repaid by the Borrower in full
together with the final
instalment; |
|
|
(b)
|
in
addition the amount for the time being of the Loan shall be reduced by the
amount of any prepayment(s) and/or repayments required to be made under or
pursuant to:
|
|
|
(A)
|
Clause
5.12 (Prepayment; termination of Commitments);
or
|
|
|
(B)
|
Clause
8.7 (Mandatory Prepayment of the Loan);
or
|
|
|
(C)
|
Clause
17.3 (Events of Default); or
|
|
|
(D)
|
Clause
21.3 (Illegality etc); or
|
|
|
(E)
|
Clause
22.6 (Increased Costs).
|
|
8.2
|
Repayment. The
Borrower shall on the final Repayment Date, repay the outstanding amount
of the Loan (if any) and shall additionally pay to the Agent for the
account of the Creditor Parties all further amounts outstanding or payable
under this Agreement and the other Finance
Documents.
|
|
8.3
|
Voluntary
prepayment. Subject to the following conditions, the
Borrower may prepay the whole or any part of the Advance at any
time.
|
|
8.4
|
Conditions for voluntary
prepayment. The conditions referred to in Clause 8.3 are
that:
|
|
(a)
|
a
partial prepayment shall be at least $5,000,000 or a higher integral
multiple of $5,000,000;
|
|
(b)
|
any
prepayment shall be applied pro rata against each outstanding instalment
(including the final “bullet”
instalment).
|
|
(c)
|
the
Agent has received from the Borrower at least 5 Business Days’ prior
written notice specifying the amount to be prepaid and the date on which
the prepayment is to be made; and
|
|
(d)
|
the
Borrower has provided evidence satisfactory to the Agent that any consent
required by the Borrower or any Security Party in connection with the
prepayment has been obtained and remains in force, and that any regulation
relevant to this Agreement which affects the Borrower or any Security
Party has been complied with.
|
|
8.5
|
Effect of notice of
prepayment. A prepayment notice may not be withdrawn or
amended without the consent of the Agent, given with the authorisation of
the Majority Lenders, and the amount specified in the prepayment notice
shall become due and payable by the Borrower on the date for prepayment
specified in the prepayment notice.
|
18
|
8.6
|
Notification of notice of
prepayment. The Agent shall notify the Lenders promptly
upon receiving a prepayment notice, and shall provide any Lender which so
requests with a copy thereof;
|
|
8.7
|
Amounts payable on
prepayment. A prepayment shall be made together
with:
|
|
(a)
|
accrued
interest (and any other amount payable under Clause 0 below or otherwise) in respect of the amount
prepaid; and
|
|
(b)
|
if
the prepayment is not made on the last day of an Interest Period, together
with any sums payable under Clause
19.1(b);
|
but
without premium or penalty.
|
9
|
CONDITIONS
PRECEDENT
|
|
9.1
|
Documents, fees and no
default. Each Lender’s obligation to contribute to the
Advance is subject to the following conditions
precedent:
|
|
(a)
|
that,
on or before the service of the Drawdown Notice, the Agent receives the
documents described in Schedule 3 Part A in form and substance
satisfactory to the Agent and its
lawyers;
|
|
(b)
|
that,
on the Drawdown Date but prior to the making available of the Advance, the
Agent receives the documents described in Schedule 3 Part B in form and
substance satisfactory to the Agent and its
lawyers;
|
|
(c)
|
that,
on or before any Drawdown Date, the Agent receives payment of all fees
then due as referred to in Clause
18.1;
|
|
(d)
|
that both
at the date of the service of a Drawdown Notice and a Drawdown
Date:
|
|
|
(i)
|
no
Event of Default or Potential Event of Default has occurred and is
continuing or would result from the borrowing of the relevant
Advance;
|
|
|
(ii)
|
the
representations and warranties in Clause 10 and those of the Borrower or
any Security Party which are set out in the other Finance Documents would
be true and not misleading if repeated on each of those dates with
reference to the circumstances then existing;
and
|
|
|
(iii)
|
none
of the circumstances contemplated by Clause 5.5 has occurred and is
continuing; and
|
|
(e)
|
that,
if the minimum security test set out in Clause 13.1 were applied
immediately following the making of the Advance, the Borrower would not be
obliged to provide additional security or prepay part of the Loan under
that Clause;
|
|
(f)
|
that
the Agent has received, and found to be acceptable to it, any further
opinions, consents, agreements and documents in connection with the
Finance Documents which the Agent, with the authorisation of the Majority
Lenders, may request by notice to the Borrower prior to the Drawdown
Date.
|
19
|
9.2
|
Waiver of conditions
precedent. If the Majority Lenders, at their discretion,
permit the Loan to be borrowed before certain of the conditions referred
to in Clause 0 are satisfied, the Borrower
shall ensure that those conditions are satisfied within 5 Business Days
after the Drawdown Date (or such longer period as the Agent, with the
authorisation of the Majority Lenders,
specifies).
|
|
10
|
REPRESENTATIONS
AND WARRANTIES
|
|
10.1
|
General. The
Borrower represents and warrants to each Creditor Party as
follows.
|
|
10.2
|
Status. The
Borrower is duly incorporated and validly existing and is in goodstanding
under the laws of Cyprus.
|
|
10.3
|
Share capital and
ownership. The legal title and beneficial ownership of
all of the issued share capital of the Borrower (10,000 registered shares
of €1) is held by the Shareholder free of any Security
Interest.
|
|
10.4
|
The
legal title and beneficial ownership of all of the issued share capital of
the Shareholder (500 registered shares of US20 par value) is held by the
Guarantor free of any Security
Interest.
|
|
10.5
|
Corporate
power. The Borrower has the corporate capacity, and has
taken all corporate action and obtained all consents necessary for
it:
|
|
(a)
|
to
purchase, and own the Ocean Rig
Shares;
|
|
(b)
|
to
execute the Finance Documents to which it is a party;
and
|
|
(c)
|
to
borrow under this Agreement, and to make all the payments contemplated by,
and to comply with, the Finance Documents to which the Borrower is a
party.
|
|
10.6
|
Consents in
force. All the consents referred to in Clause 10.5
remain in force and nothing has occurred which makes any of them liable to
revocation.
|
|
10.7
|
Legal validity; effective
Security Interests. The Finance Documents to which the
Borrower is a party, do now or, as the case may be, will, upon execution
and delivery (and, where applicable, registration as provided for in those
Finance Documents):
|
|
(a)
|
constitute
the Borrower’s legal, valid and binding obligations, enforceable against
it in accordance with their respective terms;
and
|
|
(b)
|
create
legal, valid and binding Security Interests enforceable in accordance with
their respective terms over all the assets to which they, by their terms,
relate;
|
subject
to any relevant insolvency laws affecting creditors’ rights
generally.
|
10.8
|
No third party Security
Interests. Without limiting the generality of Clause
10.7, at the time of the execution and delivery of each Finance Document
to which the Borrower is a party:
|
|
(a)
|
the
Borrower will have the right to create all the Security Interests which
that Finance Document purports to create;
and
|
20
|
(b)
|
no
third party will have any Security Interest or any other interest, right
or claim over, in or in relation to any asset to which any such Security
Interest, by its terms, relates.
|
|
10.9
|
No
conflicts. The execution by the Borrower of each Finance
Document to which it is a party, and the borrowing by the Borrower of the
Loan, and its compliance with each Finance Document to which it is a party
will not involve or lead to a contravention
of:
|
|
(a)
|
any
law or regulation; or
|
|
(b)
|
the
constitutional documents of the Borrower;
or
|
|
(c)
|
any
contractual or other obligation or restriction which is binding on the
Borrower or any of its assets.
|
|
10.10
|
No withholding
taxes. All payments which the Borrower is liable to make
under this Agreement or any of the other Finance Documents may be made
without deduction or withholding for or on account of any tax payable
under any law of any Pertinent
Jurisdiction.
|
|
10.11
|
No
default. No Event of Default or Potential Event of
Default has occurred and is
continuing.
|
|
10.12
|
Information. All
information which has been provided in writing to any Creditor Party in
connection with any Finance Document satisfied the requirements of Clause
11.5 (Information provided to be
accurate).
|
|
10.13
|
No
litigation. No legal or administrative action involving
the Borrower has been commenced or taken or, to the Borrower’s knowledge,
is likely to be commenced or taken which, in either case, would be likely
to have a material adverse effect on the Borrower’s financial position or
profitability.
|
|
10.14
|
Compliance with certain
undertakings. At the date of this Agreement, the
Borrower is in compliance with Clause 11.2 (Negative
pledge).
|
|
10.15
|
Taxes
paid. The Borrower has paid all taxes applicable to, or
imposed on or in relation to, it and its
business.
|
|
10.16
|
No money laundering.
Without prejudice to the generality of Clause 2.3, in relation to the
borrowing by the Borrower of the Loan, the performance and discharge of
its obligations and liabilities under the Finance Documents, and the
transactions and other arrangements effected or contemplated by the
Finance Documents to which the Borrower is a party the Borrower confirms
that it is acting for its own account and that the foregoing will not
involve or lead to contravention of any law, official requirement or other
regulatory measure or procedure implemented to combat “money laundering”
(as defined in Article 1 of the Directive (91/308/EEC) of the Council of
the European Communities).
|
|
11
|
GENERAL
UNDERTAKINGS
|
|
11.1
|
General. The
Borrower undertakes with each Creditor Party to comply with the following
provisions of this Clause 11 at all times during the Security Period
except as the Agent, with the authorisation of the Majority Lenders, may
otherwise permit (which authorisation shall not be unreasonably withheld
in the case of Clause 11.4).
|
21
|
11.2
|
Negative
Pledge. The Borrower will hold the legal title to, and
the entire beneficial interest in, the Ocean Rig Shares and the Earnings
free from all Security Interests other than Permitted Security Interests
and other interests and rights of every kind, except for those created by
the Finance Documents.
|
|
11.3
|
Disposal of Assets. The
Borrower will not dispose of:
|
|
(a)
|
Any
interest in the Ocean Rig Shares or the Earnings;
or
|
|
(b)
|
all
or any part of its assets, except for full
value.
|
|
11.4
|
Further capital
investments. The Borrower will not make any material
capital investments.
|
|
11.5
|
Information provided to be
accurate. All financial and other information which is
provided in writing by or on behalf of the Borrower under or in connection
with any Finance Document will be true and not misleading and will not
omit any material fact or
consideration.
|
|
11.6
|
Provision of financial
statements and compliance certificates. The Borrower
will send to the Agent:
|
|
(a)
|
as
soon as possible, but in no event later than 180 days after the end of
each financial year of the Group audited accounts of the Group prepared by
a firm of accountants acceptable to the
Agent;
|
|
(b)
|
as
soon as possible, but in no event later than 90 days after the end of (i)
each financial year of the Group and (ii) each financial quarter of each
financial year of the Group, un-audited accounts of the Group certified as
to their correctness by the chief financial officer of the Group as
appropriate;
|
|
(c)
|
together
with each set of financial statements referred to in paragraph (b), a
compliance certificate signed by the chief financial officer or a director
of the Group in the form set out in Schedule 5, duly completed and
supported by calculations setting out in reasonable detail the materials
underlying the statements made in such compliance
certificate.
|
|
11.7
|
Form of financial
statements. All accounts delivered under Clause 0 will:
|
|
(a)
|
be
prepared in accordance with all applicable laws and
GAAP;
|
|
(b)
|
give
a true and fair view of the state of affairs of the Group at the date of
those accounts and of its profit for the period to which those accounts
relate; and
|
|
(c)
|
fully
disclose or provide for all significant liabilities of the
Group.
|
|
11.8
|
Shareholder
notices. The Borrower will send to the Agent, at the
same time as they are dispatched, copies of all communications which are
dispatched to its shareholders.
|
|
11.9
|
Consents. The
Borrower will maintain in force and promptly obtain or renew, and will
promptly send certified copies to the Agent of, all consents
required:
|
|
(a)
|
for
the Borrower to own to Ocean Rig
Shares;
|
22
|
(b)
|
for
the Borrower to perform its obligations under any Finance Document to
which the Borrower is a party; and
|
|
(c)
|
for
the validity or enforceability of any Finance Document to which it is a
party;
|
and
the Borrower will comply with the terms of all such consents.
|
11.10
|
Maintenance of Security
Interests. The Borrower
will:
|
|
(a)
|
at
its own cost, do all that it reasonably can to ensure that any Finance
Document to which it is a party validly creates the obligations and the
Security Interests which it purports to create;
and
|
|
(b)
|
without
limiting the generality of paragraph (a), at its own cost, promptly
register, file, record or enrol any Finance Document to which it is a
party with any court or authority in all Pertinent Jurisdictions, pay any
stamp, registration or similar tax in all Pertinent Jurisdictions in
respect of any Finance Document, give any notice or take any other step
which, in the opinion of the Majority Lenders, is or has become necessary
or desirable for any Finance Document to which it is a party to be valid,
enforceable or admissible in evidence or to ensure or protect the priority
of any Security Interest which it
creates.
|
|
11.11
|
Notification of
litigation. The Borrower shall procure that the Agent is
provided with details of any legal or administrative action involving the
Borrower, any Security Party, or the Earnings as soon as such action is
instituted or it becomes apparent to the Borrower that it is likely to be
instituted, unless it is clear that the legal or administrative action
cannot be considered material in the context of any Finance
Document.
|
|
11.12
|
Principal place of
business. The Borrower will notify the Agent if it has a
place of business in any jurisdiction which would require a Finance
Document to which it is a party to be registered, filed or recorded with
any court authority in that jurisdiction or if the centre of its main
interests changes.
|
|
11.13
|
Confirmation of no
default. The Borrower will, within 2 Business Days after
service by the Agent of a written request, serve on the Agent a notice
which is signed by the director of the Borrower and
which:
|
|
(a)
|
states
that no Event of Default or Potential Event of Default has occurred;
or
|
|
(b)
|
states
that no Event of Default or Potential Event of Default has occurred,
except for a specified event or matter, of which all material details are
given.
|
This
Clause 11.13 does not affect the Borrower’s obligations under Clause
11.14.
|
11.14
|
Notification of
default. The Borrower will notify the Agent as soon as
the Borrower becomes aware of:
|
|
(a)
|
the
occurrence of an Event of Default or a Potential Event of Default;
or
|
|
(b)
|
any
matter which indicates that an Event of Default or a Potential Event of
Default may have occurred;
|
and
will thereafter keep the Agent fully up-to-date with all
developments.
23
|
11.15
|
Provision of further
information. The Borrower will, as soon as practicable
after receiving the request, provide the Agent with any additional
financial or other information relating
to:
|
|
(a)
|
the
Borrower, the Ocean Rig Shares or the Earnings;
and
|
|
(b)
|
any
other matter relevant to, or to any provision of, a Finance
Document;
|
which
may be requested by the Agent, the Security Trustee or any Lender at any
time.
|
11.16
|
Tax
filings. The Borrower will file or cause to be filed all
tax returns required to be filed by the Borrower in all Pertinent
Jurisdictions and shall procure all taxes shown to be due and payable on
such returns or any assessments made against it are paid (other than those
contested in good faith where such payments may be lawfully withheld) and
where adequate reserves have been made for such payment should such tax be
found to be payable.
|
|
11.17
|
“Know your customer”
checks. If:
|
|
(a)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
(b)
|
any
change in the status of the Borrower or any Security Party after the date
of this Agreement; or
|
|
(c)
|
a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer,
|
obliges
the Agent or any Lender (or, in the case of paragraph (iii), any prospective new
Lender) to comply with "know your customer" or similar identification procedures
in circumstances where the necessary information is not already available to it,
the Borrower shall promptly upon the request of the Agent or the Lender
concerned supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent (for itself or on behalf of any
Lender) or the Lender concerned (for itself or, in the case of the event
described in paragraph (iii), on behalf of any prospective new Lender) in order
for the Agent, the Lender concerned or, in the case of the event described in
paragraph (iii), any prospective new Lender to carry out and be satisfied it has
complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations pursuant to the transactions contemplated in
the Finance Documents.
|
12
|
CORPORATE
UNDERTAKINGS
|
|
12.1
|
General. The
Borrower also undertakes with each Creditor Party to comply with the
following provisions of this Clause 12 at all times during the Security
Period except as the Agent, with the authorisation of the Majority
Lenders, may otherwise permit.
|
|
12.2
|
Maintenance of
status. The Borrower will maintain its separate
corporate existence under the laws of
Cyprus.
|
|
12.3
|
Negative
undertakings. The Borrower will
not:
|
24
|
(a)
|
carry
on any business other than the ownership of the Ocean Rig Shares or incur
any liabilities or obligations other than as incurred in the cause of
owning the Ocean Rig Shares; or
|
|
(b)
|
without
the prior written consent of the Agent (which the Agent shall have the
right to withhold at its entire discretion), pay any dividend or make any
other form of distribution or effect any form of redemption, purchase or
return of share capital; or
|
|
(c)
|
grant
any Security Interest over the Ocean Rig Shares or the Earnings other than
the Shares Pledge;
|
|
(d)
|
provide
any form of credit or financial assistance
to:
|
|
|
(i)
|
a
person who is directly or indirectly interested in the Borrower’s share or
loan capital; or
|
|
|
(ii)
|
any
company in or with which such a person is directly or indirectly
interested or connected
|
or
enter into any transaction with or involving such a person or company on terms
which are, in any respect, less favourable to the Borrower than those which it
could obtain in a bargain made at arms’ length;
|
(e)
|
incur
any Financial Indebtedness other than the Loan;
or
|
|
(f)
|
open
or maintain any account with any bank or financial institution except
accounts with the Lender;
|
|
(g)
|
issue,
allot or grant any person a right to any shares in its capital or
repurchase or reduce its issued share
capital;
|
|
(h)
|
acquire
any shares or other securities other than US or UK Treasury bills and
certificates of deposit issued by major North American or European banks,
or enter into any transaction in a derivative;
or
|
|
(i)
|
enter
into any form of amalgamation, merger or de-merger or any form of
reconstruction or reorganisation.
|
|
12.4
|
Ocean Rig
listing. Ocean Rig ASA shall maintain its listing
status on the Oslo Børs.
|
|
12.5
|
Financial
Covenants. The Borrower shall ensure
that:
|
|
(a)
|
the
Market Adjusted Equity Ratio shall not be less
than:
|
|
|
(i)
|
in
the Financial Year ending 31 December 2007,
0.2:1;
|
|
|
(ii)
|
in
the Financial Year ending 31 December 2008, 0.25:1;
and
|
|
|
(iii)
|
in
each subsequent Financial Year,
0.3:1;
|
|
(b)
|
the
Interest Coverage Ratio shall not be less than
3:1;
|
|
(c)
|
the
Market Value Adjusted Net Worth of the Group shall not be less
than:
|
25
|
|
(i)
|
in
the Financial Year ending respectively 31 December 2007,
$125,000,000;
|
|
|
(ii)
|
in
the Financial Year ending 31 December 2008, $180,000,000;
and
|
|
|
(iii)
|
in
each subsequent Financial Year, $225,000,000;
and
|
|
(d)
|
the
Liquid Funds of the Group are not less than
$20,000,000.
|
|
13
|
SECURITY
COVER
|
|
13.1
|
Minimum required security
cover. Clause 13.2 applies if the Agent notifies the
Borrower that:
|
|
(a)
|
the
aggregate Fair Market Value of the Ocean Rig Shares;
plus
|
|
(b)
|
the
net realisable value of any additional security previously provided under
this Clause 13;
|
is
below 150 per cent. of the Loan.
|
13.2
|
Provision of additional
security; prepayment. If the Agent serves a notice on
the Borrower under Clause 13.1, the Borrower shall, within two weeks after
the date on which the Agent's notice is served,
either:
|
|
(a)
|
provide,
or ensure that a third party provides, additional security which, in the
opinion of the Majority Lenders, has a net realisable value at least equal
to the shortfall and is documented in such terms as the Agent may, with
the authorisation of the Majority Lenders, approve or require;
or
|
|
(b)
|
prepay
such part (at least) of the Loan as will eliminate the
shortfall.
|
|
13.3
|
Valuation of Ocean Rig
Shares. The market value of the Ocean Rig Shares at any
date is that shown by the quoted price (after deducting the estimated
amount of the usual and reasonable expenses which would be incurred in
connection with a sale of such Ocean Rig Shares) at close of business on
the previous Business Day on the Oslo Børs or in the event of such
quotation being unavailable then such valuation as the Agent shall
reasonably determine by reference to market
conditions.
|
|
13.4
|
Valuations
binding. Any valuation under Clause 13.2 or 13.3 shall
be binding and conclusive as regards the Borrower, as shall be any
valuation which the Majority Lenders make of any additional
security.
|
|
13.5
|
Mandatory
prepayments. In the event
that:
|
|
(a)
|
the
Borrower shall seek to sell or otherwise dispose of the Ocean Rig Shares
in whole or in part (subject to the prior written consent of the Agent
which shall not to be unreasonably withheld or delayed) then such sale or
other disposal shall be on terms reasonably satisfactory to the Agent and,
upon completion of such sale or other disposal, the Borrower shall repay
to the Agent all sums outstanding under this Agreement and the Finance
Documents, together with all costs and expenses;
or
|
26
|
(b)
|
Ocean
Rig ASA is de-listed from the Oslo Børs or privatised by any action of
the Borrower or otherwise or if any member of the Group (and/or
persons acting in concert with it) acquires (or is required by law to make
an offer to acquire) further shares in Ocean Rig ASA whether such
acquisition is by way of a voluntary offer for shares or because such
member of the Group (and/or persons acting in concert with it) is required
to make a mandatory offer for the remaining shares in Ocean Rig ASA
pursuant to Chapter 6 of the Norwegian Securities Trading Act of 2007
(Verdipapirhandelloven
2007), and if such mandatory offer is accepted, the Borrower shall
repay to the Agent all sums outstanding under this Agreement and Finance
Documents, together with all costs and
expenses.
|
|
13.6
|
Application of
prepayment. Clause 8 shall apply in relation to any
prepayment pursuant to Clause 13.2(b) or 13.5(a) and
(b).
|
|
14
|
PAYMENTS
AND CALCULATIONS
|
|
14.1
|
Currency and method of
payments. All payments to be made by the Lenders or by
the Borrower under a Finance Document shall be made to the Agent or to the
Security Trustee, in the case of an amount payable to
it:
|
|
(a)
|
by
not later than 11.00 a.m. (New York City time) on the due
date;
|
|
(b)
|
in
same day Dollar funds settled through the New York Clearing House
Interbank Payments System (or in such other Dollar funds and/or settled in
such other manner as the Agent shall specify as being customary at the
time for the settlement of international transactions of the type
contemplated by this Agreement);
|
|
(c)
|
in
the case of an amount payable by a Lender to the Agent or by the Borrower
to the Agent or any Lender, to such account with such bank as the Agent
may from time to time notify to the Borrower and the other Creditor
Parties; and
|
|
(d)
|
in
the case of an amount payable to the Security Trustee, to such account as
it may from time to time notify to the Borrower and the other Creditor
Parties.
|
|
14.2
|
Payment on non-Business
Day. If any payment by the Borrower under a Finance
Document would otherwise fall due on a day which is not a Business
Day:
|
|
(a)
|
the
due date shall be extended to the next succeeding Business Day;
or
|
|
(b)
|
if
the next succeeding Business Day falls in the next calendar month, the due
date shall be brought forward to the immediately preceding Business
Day;
|
and
interest shall be payable during any extension under paragraph (a) at the rate
payable on the original due date.
|
14.3
|
Basis for calculation of
periodic payments. All interest and commitment fees and
any other payments under any Finance Document which are of an annual or
periodic nature shall accrue from day to day and shall be calculated on
the basis of the actual number of days elapsed and a 360 day
year.
|
|
14.4
|
Distribution of payments to
Creditor Parties. Subject to Clauses 14.5, 14.6 and
14.7:
|
27
|
(a)
|
any
amount received by the Agent under a Finance Document for distribution or
remittance to a Lender or the Security Trustee shall be made available by
the Agent to that Lender or, as the case may be, the Security Trustee by
payment, with funds having the same value as the funds received, to such
account as the Lender or the Security Trustee may have notified to the
Agent not less than 5 Business Days previously;
and
|
|
(b)
|
amounts
to be applied in satisfying amounts of a particular category which are due
to the Lenders generally shall be distributed by the Agent to each Lender
pro rata to the amount in that category which is due to
it.
|
|
14.5
|
Permitted deductions by
Agent. Notwithstanding any other provision of this
Agreement or any other Finance Document, the Agent may, before making an
amount available to a Lender, deduct and withhold from that amount any sum
which is then due and payable to the Agent from that Lender under any
Finance Document or any sum which the Agent is then entitled under any
Finance Document to require that Lender to pay on
demand.
|
|
14.6
|
Agent only obliged to pay when
monies received. Notwithstanding any other provision of
this Agreement or any other Finance Document, the Agent shall not be
obliged to make available to the Borrower or any Lender any sum which the
Agent is expecting to receive for remittance or distribution to the
Borrower or that Lender until the Agent has satisfied itself that it has
received that sum.
|
|
14.7
|
Refund to Agent of monies not
received. If and to the extent that the Agent makes
available a sum to the Borrower, a Lender, without first having received
that sum, the Borrower or (as the case may be) the Lender concerned shall,
on demand:
|
|
(a)
|
refund
the sum in full to the Agent; and
|
|
(b)
|
pay
to the Agent the amount (as certified by the Agent) which will indemnify
the Agent against any funding or other loss, liability or expense incurred
by the Agent as a result of making the sum available before receiving
it.
|
|
14.8
|
Agent may assume
receipt. Clause 14.7 shall not affect any claim which
the Agent has under the law of restitution, and applies irrespective of
whether the Agent had any form of notice that it had not received the sum
which it made available.
|
|
14.9
|
Creditor Party
accounts. Each Creditor Party shall maintain an account
or accounts showing the amounts owing to it by the Borrower and each
Security Party under the Finance Documents and all payments in respect of
those amounts made by the Borrower and any Security
Party.
|
|
14.10
|
Agent’s memorandum
account. The Agent shall maintain a memorandum account
or accounts showing the amounts advanced by the Lenders and all other sums
owing to the Agent, the Security Trustee and each Lender from the Borrower
and each Security Party under the Finance Documents and all payments in
respect of those amounts made by the Borrower and any Security
Party.
|
|
14.11
|
Accounts prima facie
evidence. If any of the accounts maintained under
Clauses 14.9 and 14.10 show an amount to be owing by the Borrower or a
Security Party to a Creditor Party, those accounts shall be prima facie
evidence that that amount is owing to that Creditor Party under this
Agreement and the other Finance
Documents.
|
28
|
15
|
APPLICATION
OF RECEIPTS
|
|
15.1
|
Normal order of
application. Except as any Finance Document may
otherwise provide, any sums which are received or recovered by any
Creditor Party under or by virtue of any Finance Document shall be
applied:
|
|
(a)
|
FIRST:
in or towards satisfaction of any amounts then due and payable under the
Finance Documents (or any of them) in such order of application and/or
such proportions as the Agent, acting with the authorisation of the
Majority Lenders, may specify by notice to the Borrower, the Security
Parties and the other Creditor
Parties;
|
|
(b)
|
SECONDLY:
in retention of an amount equal to any amount not then due and payable
under any Finance Document but which the Agent, by notice to the Borrower,
the Security Parties and the other Creditor Parties, states in its opinion
will or may become due and payable in the future and, upon those amounts
becoming due and payable, in or towards satisfaction of them in accordance
with the provisions of Clause 15.1(a);
and
|
|
(c)
|
THIRDLY:
any surplus shall be paid to the Borrower or to any other person appearing
to be entitled to it.
|
|
15.2
|
Variation of order of
application. The Agent may, with the authorisation of
the Majority Lenders, by notice to the Borrower, the Security Parties and
the other Creditor Parties provide for a different manner of application
from that set out in Clause 15.1 either as regards a specified sum or sums
or as regards sums in a specified category or
categories.
|
|
15.3
|
Notice of variation of order of
application. The Agent may give notices under
Clause 15.2 from time to time; and such a notice may be stated to
apply not only to sums which may be received or recovered in the future,
but also to any sum which has been received or recovered on or after the
third Business Day before the date on which the notice is
served.
|
|
15.4
|
Appropriation rights
overridden. This Clause 15 and any notice which the
Agent gives under Clause 15.2 shall override any right of appropriation
possessed, and any appropriation made, by the Borrower or any Security
Party.
|
|
16
|
EARNINGS
|
|
16.1
|
Payment of
Earnings. The Borrower undertakes with the Lenders to
ensure that, throughout the Security Period the Earnings are paid to the
Deposit Account if denominate in NOK or the Earnings Account if
denominated in US Dollars.
|
|
16.2
|
Location of
account. The Borrower shall
promptly:
|
|
(a)
|
comply
with any requirement of the Lender as to the location or re-location of
the Deposit Account or the Earnings
Account;
|
|
(b)
|
execute
any documents which the Lender specifies to create or maintain in favour
of the Lender a Security Interest over (and/or rights of set-off,
consolidation or other rights in relation to) the Deposit Account or the
Earnings Account.
|
29
|
16.3
|
Debits for expenses
etc. The Lender shall be entitled (but not obliged) from
time to time to debit the Deposit Account or the Earnings Account without
prior notice in order to discharge any amount due and payable to it under
Clause 18 or 19 or payment of which it has become entitled to demand under
Clause 18 or 19.
|
|
17
|
EVENTS
OF DEFAULT
|
|
17.1
|
Events of
Default. An Event of Default occurs
if:
|
|
(a)
|
the
Borrower or any Security Party fails to pay when due or, if payable on
demand, within 14 days of such demand, any sum payable under a Finance
Document or under any document relating to a Finance Document;
or
|
|
(b)
|
any
breach occurs of Clause 9.2 (Waiver of conditions precedent), 11.2
(Negative pledge), 11.3 (No disposal of assets), 12.2 (Maintenance of
Status), 12.3 (Negative undertakings), 12.4 (Financial undertakings), 12.5
(Financial covenants) or 13.2 (Provision of additional security;
prepayment) of this Agreement or any of Clauses 11.10 (Maintenance of
status), 11.11 (No disposal of assets, change of business, name or fiscal
year end date), 11.12 (No merger etc.) and 11.13 (Maintenance of
ownership) of the Guarantee; or,
|
|
(c)
|
any
breach by the Borrower or any Security Party occurs of any provision of a
Finance Document (other than a breach covered by paragraphs (a) or (b))
if, in the opinion of the Majority Lenders, such default is capable of
remedy, and such default continues unremedied 30 days after written notice
from the Agent requesting action to remedy the same;
or
|
|
(d)
|
(subject
to any applicable grace period specified in the Finance Document) any
breach by the Borrower or any Security Party occurs of any provision of a
Finance Document (other than a breach covered by paragraphs (a), (b) or
(c)); or
|
|
(e)
|
any
representation, warranty or statement made by, or by an officer of, the
Borrower or a Security Party in a Finance Document or in a Drawdown Notice
or any other notice or document relating to a Finance Document is untrue
or misleading in any material respect when it is made;
or
|
|
(f)
|
any
of the following occurs in relation to any Financial Indebtedness of a
Relevant Person in respect of $1,000,000 or more or, as regards Financial
Indebtedness arising under different documents or transactions, an
aggregate amount of $1.000,000 or more (or the equivalent in
another currency):
|
|
|
(i)
|
any
such Financial Indebtedness of a Relevant Person is not paid when due or,
if so payable, on demand; or
|
|
|
(ii)
|
any
such Financial Indebtedness of a Relevant Person becomes due and payable
or capable of being declared due and payable prior to its stated maturity
date as a consequence of any event of default;
or
|
|
|
(iii)
|
a
lease, hire purchase agreement or charter creating any such Financial
Indebtedness of a Relevant Person is terminated by the lessor or owner or
becomes capable of being terminated as a consequence of any termination
event; or
|
30
|
|
(iv)
|
any
overdraft, loan, note issuance, acceptance credit, letter of credit,
guarantee, foreign exchange or other facility, or any swap or other
derivative contract or transaction, relating to any such Financial
Indebtedness ceases to be available or becomes capable of being terminated
as a result of any event of default, or cash cover is required, or becomes
capable of being required, in respect of such a facility as a result of
any event of default; or
|
|
|
(v)
|
any
Security Interest securing any such Financial Indebtedness of a Relevant
Person becomes enforceable; or
|
|
(g)
|
any
of the following occurs in relation to a Relevant
Person:
|
|
|
(i)
|
a
Relevant Person becomes, in the opinion of the Majority Lenders, unable to
pay its debts as they fall due; or
|
|
|
(ii)
|
any
assets of a Relevant Person are subject to any form of execution,
attachment, arrest, sequestration or distress, or any form of freezing
order in respect of a sum of, or sums aggregating, $1,000,000 or more or
the equivalent in another currency;
or
|
|
|
(iii)
|
any
administrative or other receiver is appointed over any asset of a Relevant
Person; or
|
|
|
(iv)
|
an
administrator is appointed (whether by the court or otherwise) in respect
of a Relevant Person; or
|
|
|
(v)
|
a
Relevant Person makes any formal declaration of bankruptcy or any formal
statement to the effect that it is insolvent or likely to become
insolvent, or an administration notice is given or filed in relation to a
Relevant Person, or a winding up or administration order is made in
relation to a Relevant Person, or the members or directors of a Relevant
Person pass a resolution to the effect that it should be wound up, placed
in administration or cease to carry on business, save that this paragraph
does not apply to a fully solvent winding up of a Relevant Person other
than the Borrower or any Guarantor which is, or is to be, effected for the
purposes of an amalgamation or reconstruction previously approved by the
Majority Lenders and effected not later than 3 months after the
commencement of the winding up; or
|
|
|
(vi)
|
a
petition is presented in any Pertinent Jurisdiction for the winding up or
administration, or the appointment of a provisional liquidator, of a
Relevant Person unless the petition is being contested in good faith and
on substantial grounds and is dismissed or withdrawn within 30 days of the
presentation of the petition; or
|
|
|
(vii)
|
a
Relevant Person petitions a court, or presents any proposal for, any form
of judicial or non-judicial suspension or deferral of payments,
reorganisation of its debt (or certain of its debt) or arrangement with
all or a substantial proportion (by number or value) of its creditors or
of any class of them or any such suspension or deferral of payments,
reorganisation or arrangement is effected by court order, contract or
otherwise; or
|
31
|
(viii)
|
any
meeting of the members or directors of a Relevant Person is summoned for
the purpose of considering a resolution or proposal to authorise or take
any action of a type described in paragraphs (iii), (iv), (v), (vi) or
(vii); or
|
|
|
(ix)
|
in
a Pertinent Jurisdiction other than England, any event occurs or any
procedure is commenced which, in the opinion of the Majority Lenders, is
similar to any of the foregoing; or
|
|
(h)
|
the
Borrower or the Guarantor ceases or suspends carrying on its business or a
part of its business which, in the opinion of the Majority Lenders, is
material in the context of this Agreement;
or
|
|
(i)
|
it
becomes unlawful in any Pertinent Jurisdiction or
impossible:
|
|
|
(i)
|
for
the Borrower or any Security Party to discharge any liability under a
Finance Document to which it is a party or to comply with any other
obligation which the Majority Lenders consider material under a Finance
Document to which it is a party;
|
|
|
(ii)
|
for
the Agent, the Security Trustee or the Lenders to exercise or enforce any
right under, or to enforce any Security Interest created by, a Finance
Document; or
|
|
(j)
|
the
Borrower ceases to be wholly and beneficially owned directly or indirectly
by the Guarantor or there is any change to the ultimate control of the
voting rights attaching to the shares in the
Borrower;
|
|
(k)
|
it
appears to the Lender that, without its prior written consent, a change
has occurred after the date of this Agreement in the ultimate beneficial
ownership of the shares of the Guarantor or in the ultimate control of the
voting rights attaching to any of those shares as a consequence of which
the beneficial ownership or voting rights of Entreprenurial Spirit
Foundation, of Vaduz, Liechtenstein, controlled by Mr. Xxxxxx Xxxxxxxx
beneficially, have fallen or will fall to less than twenty per cent (20%)
of either the beneficial ownership or voting rights;
or
|
|
(l)
|
any
consent necessary to enable the Borrower to own the Ocean Rig Shares or to
enable the Borrower or any Security Party to comply with any provision
which the Majority Lenders consider material of a Finance Document is not
granted, expires without being renewed, is revoked or becomes liable to
revocation or any condition of such a consent is not fulfilled;
or
|
|
(m)
|
any
provision which the Majority Lenders consider material of a Finance
Document proves to have been or becomes invalid or unenforceable, or a
Security Interest created by a Finance Document proves to have been or
becomes invalid or unenforceable or such a Security Interest proves to
have ranked after, or loses its priority to, another Security Interest or
any other third party claim or interest;
or
|
|
(n)
|
the
security constituted by a Finance Document is in any way imperilled or in
jeopardy; or
|
32
|
(o)
|
any
other event occurs or any other circumstances arise or develop including,
without limitation a change in the financial position, state of affairs or
prospects of the Borrower or the Guarantor in the light of which the
Majority Lenders consider that there is a significant risk that the
Borrower or the Guarantor is, or will later become, unable to discharge
its liabilities under the Finance Documents as they fall due;
or
|
|
17.2
|
Actions following an Event of
Default. On, or at any time after, the occurrence of an
Event of Default:
|
|
(a)
|
the
Agent may, and if so instructed by the Majority Lenders, the Agent
shall:
|
|
|
(i)
|
serve
on the Borrower a notice stating that the Commitments and all other
obligations of each Lender to the Borrower under this Agreement are
terminated; and/or
|
|
|
(ii)
|
serve
on the Borrower a notice stating that the Loan, all accrued interest and
all other amounts accrued or owing under this Agreement are immediately
due and payable or are due and payable on demand;
and/or
|
|
|
(iii)
|
take
any other action which, as a result of the Event of Default or any notice
served under paragraphs (i), (ii) or (iii), the Agent and/or the Lenders
are entitled to take under any Finance Document or any applicable law;
and/or
|
|
(b)
|
the
Security Trustee may, and if so instructed by the Agent, acting with the
authorisation of the Majority Lenders, the Security Trustee shall take any
action which, as a result of the Event of Default or any notice served
under paragraph (a) (i) or (ii), the Security Trustee, the Agent and/or
the Lenders are entitled to take under any Finance Document or any
applicable law.
|
|
17.3
|
Termination of
Commitments. On the service of a notice under Clause
17.2, the Commitments and all other obligations of each Lender to the
Borrower under this Agreement shall
terminate.
|
|
17.4
|
Acceleration of
Loan. On the service of a notice under Clause 17.2, the
Loan, all accrued interest and all other amounts accrued or owing from the
Borrower or any Security Party under this Agreement and every other
Finance Document shall become immediately due and payable or, as the case
may be, payable on demand.
|
|
17.5
|
Multiple notices; action
without notice. The Agent may serve notices under
paragraphs (a) (i) and (ii) of Clause 17.2 simultaneously or on different
dates and it and/or the Security Trustee may take any action referred to
in that Clause if no such notice is served or simultaneously with or at
any time after the service of both or either of such
notices.
|
|
17.6
|
Notification of Creditor
Parties and Security Parties. The Agent shall send to
each Lender, the Security Trustee and each Security Party a copy or the
text of any notice which the Agent serves on the Borrower under Clause
17.2; but the notice shall become effective when it is served on the
Borrower, and no failure or delay by the Agent to send a copy or the text
of the notice to any other person shall invalidate the notice or provide
the Borrower or any Security Party with any form of claim or
defence.
|
|
17.7
|
Lenders’ rights
unimpaired. Nothing in this Clause 17 shall be taken to
impair or restrict the exercise of any right given to individual Lenders
under a Finance Document or the general law; and, in particular, this
Clause is without prejudice to Clause
3.1.
|
33
|
17.8
|
Exclusion of Creditor Party
Liability. No Creditor Party, and no receiver or manager
appointed by the Security Trustee, shall have any liability to the
Borrower or a Security Party:
|
|
(a)
|
for
any loss caused by an exercise of rights under, or enforcement of a
Security Interest created by, a Finance Document or by any failure or
delay to exercise such a right or to enforce such a Security Interest;
or
|
|
(b)
|
as
mortgagee in possession or otherwise, for any income or principal amount
which might have been produced by or realised from any asset comprised in
such a Security Interest or for any reduction (however caused) in the
value of such an asset;
|
except
that this does not exempt a Creditor Party or a receiver or manager from
liability for losses shown to have been directly and mainly caused by the
dishonesty or the wilful misconduct of such Creditor Party’s own officers and
employees or ( as the case may be) such receiver’s or manager’s own partners or
employees.
|
17.9
|
Relevant
Persons. In this Clause 17 a “Relevant Person” means
the Borrower and/or any Security
Party.
|
|
17.10
|
Interpretation. In
Clause 17.1(f) references to an event of default or a termination event
include any event, howsoever described, which is similar to an event of
default in a facility agreement or a termination event in a finance lease;
and in Clause 17.1(g) “petition” includes an
application.
|
|
18
|
FEES
AND EXPENSES
|
|
18.1
|
Arrangement, agency
fees. The Borrower shall pay to the
Agent:
|
|
(a)
|
on
each of the date of this Agreement and the Drawdown Date, the arrangement
fees separately agreed between the Agent and the Borrower to be payable to
the Agent as to one quarter on the date of this Agreement and as to three
quarters on the Drawdown Date, for distribution to the Lenders at the
discretion of the Agent;
|
|
(b)
|
on
the last day of each of March, June, September and December of each year,
in respect of the period from (and including) the date of this Agreement
until the earlier of (i) the date on which the Total Commitments shall
have been drawn down and (ii) the expiry of the Security Period, for the
account of the Lenders, a commitment fee at a rate equal to one quarter of
the Margin per annum on the undrawn amount of the Total Commitments from
time to time, for distribution among the Lenders as agreed by them;
and
|
|
(c)
|
on
the date of this Agreement and on each anniversary thereof during the
Security Period (and pro rata upon repayment or prepayment of all sums due
hereunder) an annual non-refundable agency fee of $50,000, such agency fee
to be payable to the Agent in advance for its own
account.
|
|
18.2
|
Costs of negotiation,
preparation etc. The Borrower shall pay to the Agent
within ten days of its demand the amount of all reasonable expenses
incurred by the Agent or the Security Trustee in connection with the
negotiation, preparation, execution or registration of any Finance
Document or any related document or with any transaction contemplated by a
Finance Document or a related
document.
|
34
|
18.3
|
Costs of variations,
amendments, enforcement etc. The Borrower shall pay to
the Agent, on the Agent’s demand, for the account of the Creditor Party
concerned, the amount of all expenses incurred by a Creditor Party in
connection with:
|
|
(a)
|
any
amendment or supplement to a Finance Document, or any proposal for such an
amendment to be made;
|
|
(b)
|
any
consent or waiver by the Lenders, the Majority Lenders or the Creditor
Party concerned under or in connection with a Finance Document, or any
request for such a consent or
waiver;
|
|
(c)
|
the
valuation of any security provided or offered under Clause 15 or any other
matter relating to such security;
or
|
|
(d)
|
any
step taken by the Lender concerned with a view to the protection, exercise
or enforcement of any right or Security Interest created by a Finance
Document or for any similar
purpose.
|
There
shall be recoverable under paragraph (e) the full amount of all legal expenses,
whether or not such as would be allowed under rules of court or any taxation or
other procedure carried out under such rules.
|
18.4
|
Documentary
taxes. The Borrower shall promptly pay any tax payable
on or by reference to any Finance Document, and shall, on the Agent’s
demand, fully indemnify each Creditor Party against any claims, expenses
and liabilities and losses resulting from any failure or delay by the
Borrower to pay such a tax.
|
|
18.5
|
Financial Services Authority
fees. The Borrower shall pay to the Agent, on the
Agent’s demand, for the account of the Lender concerned the amounts which
the Agent from time to time notifies the Borrower that a Lender has
notified the Agent to be necessary to compensate it for the cost
attributable to its Contribution resulting from the imposition from time
to time under or pursuant to the Bank of England Act 1998 and/or by the
Bank of England and/or by the Financial Services Authority (or other
United Kingdom governmental authorities or agencies) of a requirement to
pay fees to the Financial Services Authority calculated by reference to
liabilities used to fund its
Contribution.
|
|
18.6
|
Certification of
amounts. A notice which is signed by a duly authorised
person on behalf of a Creditor Party, which states that a specified
amount, or aggregate amount, is due to that Creditor Party under this
Clause 18 and which indicates (without necessarily specifying a detailed
breakdown) the matters in respect of which the amount, or aggregate
amount, is due shall be prima facie evidence that the amount, or aggregate
amount, is due.
|
|
19
|
INDEMNITIES
|
|
19.1
|
Indemnities regarding borrowing
and repayment of Loan. The Borrower shall fully
indemnify the Agent and each Lender on the Agent’s demand and the Security
Trustee on its demand in respect of all claims, expenses, liabilities and
losses which are made or brought against or incurred by that Creditor
Party, or which that Creditor Party reasonably and with due diligence
estimates that it will incur, as a result of or in connection
with:
|
|
(a)
|
the
Advance not being borrowed on the date specified in the Drawdown Notice
for any reason other than a default by the Lender claiming the
indemnity;
|
|
(b)
|
the
receipt or recovery of all or any part of the Loan or an overdue sum
otherwise than on the last day of an Interest Period applicable to it or
other relevant period;
|
35
|
(c)
|
any
failure (for whatever reason) by the Borrower to make payment of any
amount due under a Finance Document on the due date or, if so payable, on
demand (after giving credit for any default interest paid by the Borrower
on the amount concerned under Clause
7);
|
|
(d)
|
the
occurrence and/or continuance of an Event of Default or a Potential Event
of Default and/or the acceleration of repayment of the Loan under Clause
17;
|
and
in respect of any tax (other than tax on its overall net income) for which a
Creditor Party is liable in connection with any amount paid or payable to that
Creditor Party (whether for its own account or otherwise) under any Finance
Document.
|
19.2
|
Breakage
costs. Without limiting its generality, Clause 19.1
covers any claim, liability, expense or loss, including loss of a
prospective profit, incurred by a
Lender:
|
|
(a)
|
in
liquidating or employing deposits from third parties acquired or arranged
to fund or maintain all or any part of its Contribution and/or any overdue
amount (or an aggregate amount which includes its Contribution or any
overdue amount); and
|
|
(b)
|
in
terminating, or otherwise in connection with, any interest and/or currency
swap or any other transaction entered into (whether with another legal
entity or with another office or department of the Lender concerned) to
hedge any exposure arising under this Agreement or that part which the
Lender concerned determines is fairly attributable to this Agreement of
the amount of the liabilities, expenses or losses (including losses of
prospective profits) incurred by it in terminating, or otherwise in
connection with, a number of transactions of which this Agreement is
one.
|
|
19.3
|
Miscellaneous
indemnities. The Borrower shall fully indemnify each
Creditor Party severally on their respective demands in respect of all
claims, demands, proceedings, liabilities, taxes, losses and expenses of
every kind (“liability
items”) which may be made or brought against, or incurred by, a
Creditor Party, in any country, as a result of or in relation
to:
|
|
(a)
|
any
action taken, or omitted or neglected to be taken, under or in connection
with any Finance Document by the Agent, the Security Trustee or any other
Creditor Party or by any receiver appointed under a Finance
Document;
|
|
(b)
|
any
other Pertinent Matter;
|
other
than liability items which are shown to have been caused by the dishonesty or
wilful misconduct of the officers or employees of the Creditor Party
concerned.
|
19.4
|
Extension of indemnities;
Without prejudice to its generality, Clause 19.3 covers any matter
which would be covered by Clause 19.3 if any of the references in that
Clause to a Creditor Party were a reference to the Agent or (as the case
may be) to the Security Trustee.
|
|
19.5
|
Currency
indemnity. If any sum due from the Borrower or any
Security Party to a Creditor Party under a Finance Document or under any
order or judgment relating to a Finance Document has to be converted from
the currency in which the Finance Document provided for the sum to be paid
(the “Contractual
Currency”) into another currency (the “Payment Currency”) for
the purpose of:
|
36
|
(a)
|
making
or lodging any claim or proof against the Borrower or any Security Party,
whether in its liquidation, any arrangement involving it or otherwise;
or
|
|
(b)
|
obtaining
an order or judgment from any court or other tribunal;
or
|
|
(c)
|
enforcing
any such order or judgment;
|
the
Borrower shall indemnify the Creditor Party concerned against the loss arising
when the amount of the payment actually received by that Creditor Party is
converted at the available rate of exchange into the Contractual
Currency.
In
this Clause 19.5, the “available rate of exchange”
means the rate at which the Creditor Party concerned is able at the opening of
business (London time) on the Business Day after it receives the sum concerned
to purchase the Contractual Currency with the Payment Currency.
This
Clause 19.5 creates a separate liability of the Borrower which is distinct from
its other liabilities under the Finance Documents and which shall not be merged
in any judgment or order relating to those other liabilities.
|
19.6
|
Certification of
amounts. A notice which is duly signed by an authorised
signatory on behalf of a Creditor Party, which states that a specified
amount, or aggregate amount, is due to that Creditor Party under this
Clause 19 and which indicates (without necessarily specifying a detailed
breakdown) the matters in respect of which the amount, or aggregate
amount, is due shall be prima facie evidence that the amount, or aggregate
amount, is due.
|
|
19.7
|
Sums deemed due to a
Lender. For the purposes of this Clause 19, a sum
payable by the Borrower to the Agent or the Security Trustee for
distribution to a Lender shall be treated as a sum due to that
Lender.
|
|
20
|
NO
SET-OFF OR TAX DEDUCTION
|
|
20.1
|
No
deductions. All amounts due from the Borrower under a
Finance Document shall be paid:
|
|
(a)
|
without
any form of set-off, cross-claim or condition;
and
|
|
(b)
|
free
and clear of any tax deduction except a tax deduction which the Borrower
is required by law to make.
|
|
20.2
|
Grossing-up for
taxes. If the Borrower is required by law to make a tax
deduction from any payment:
|
|
(a)
|
the
Borrower shall notify the Agent as soon as it becomes aware of the
requirement;
|
|
(b)
|
the
Borrower shall pay the tax deducted to the appropriate taxation authority
promptly, and in any event before any fine or penalty arises;
and
|
|
(c)
|
the
amount due in respect of the payment shall be increased by the amount
necessary to ensure that each Creditor Party receives and retains (free
from any liability relating to the tax deduction) a net amount which,
after the tax deduction, is equal to the full amount which it would
otherwise have received.
|
37
|
20.3
|
Evidence of payment of
taxes. Within 1 month after making any tax deduction,
the Borrower shall deliver to the Agent documentary evidence satisfactory
to the Agent that the tax had been paid to the appropriate taxation
authority.
|
|
20.4
|
Tax
credits. A Creditor Party which receives for its own
account a repayment or credit in respect of tax on account of which the
Borrower has made an increased payment under Clause 20.2 shall pay to the
Borrower a sum equal to the proportion of the repayment or credit which
that Creditor Party allocates to the amount due from the Borrower in
respect of which the Borrower made the increased payment,
but:
|
|
(a)
|
the
Creditor Party shall not be obliged to allocate to this transaction any
part of a tax repayment or credit which is referable to a class or number
of transactions;
|
|
(b)
|
nothing
in this Clause 20.4 shall oblige a Creditor Party to arrange its tax
affairs in any particular manner, to claim any type of relief, credit,
allowance or deduction instead of, or in priority to, another or to make
any such claim within any particular
time;
|
|
(c)
|
nothing
in this Clause 20.4 shall oblige a Creditor Party to make a payment which
would leave it in a worse position than it would have been in if the
Borrower had not been required to make a tax deduction from a payment;
and
|
|
(d)
|
any
allocation or determination made by a Creditor Party under or in
connection with this Clause 20.4 shall be conclusive and binding on the
Borrower and the other Creditor Parties in the absence of manifest
error.
|
|
20.5
|
Exclusion of tax on overall net
income. In this Clause 20 “tax deduction” means any
deduction or withholding for or on account of any present or future tax
except tax on a Creditor Party’s overall net
income.
|
|
21
|
ILLEGALITY,
ETC
|
|
21.1
|
Illegality. This
Clause 21 applies if a Lender (the “Notifying Lender”)
notifies the Agent that it has become, or will with effect from a
specified date, become:
|
|
(a)
|
unlawful
or prohibited as a result of the introduction of a new law, an amendment
to an existing law or a change in the manner in which an existing law is
or will be interpreted or applied;
or
|
|
(b)
|
contrary
to, or inconsistent with, any
regulation,
|
for
the Notifying Lender to maintain or give effect to any of its obligations under
this Agreement in the manner contemplated by this Agreement.
|
21.2
|
Notification of
illegality. The Agent shall promptly notify the
Borrower, the Security Parties, the Security Trustee and the other Lenders
of the notice under Clause 21.1 which the Agent receives from the
Notifying Lender.
|
|
21.3
|
Prepayment; termination of
Commitment. On the Agent notifying the Borrower under
Clause 21.2, the Notifying Lender’s Commitment shall terminate; and
thereupon or, if later, on the date specified in the Notifying Lender’s
notice under Clause 21.1 as the date on which the notified event would
become effective the Borrower shall prepay the Notifying Lender’s
Contribution in accordance with Clause
8.
|
38
|
22
|
INCREASED
COSTS
|
|
22.1
|
Increased
costs. This Clause 22 applies if a Lender (the “Notifying Lender”)
notifies the Agent that the Notifying Lender considers that as a result
of:
|
|
(a)
|
the
introduction or alteration after the date of this Agreement of a law or an
alteration after the date of this Agreement in the manner in which a law
is interpreted or applied (disregarding any effect which relates to the
application to payments under this Agreement of a tax on the Lender's
overall net income); or
|
|
(b)
|
complying
with any regulation (including any which relates to capital adequacy or
liquidity controls or which affects the manner in which the Notifying
Lender allocates capital resources to its obligations under this
Agreement) which is introduced, or altered, or the interpretation or
application of which is altered, after the date of this
Agreement,
|
the
Notifying Lender (or a parent company of it) has incurred or will incur an
“increased
cost”.
|
22.2
|
Meaning of “increased
costs”. In this Clause 22, “increased costs” means,
in relation to a Notifying Lender:
|
|
(a)
|
an
additional or increased cost incurred as a result of, or in connection
with, the Notifying Lender having entered into, or being a party to, this
Agreement or having taken an assignment of rights under this Agreement, of
funding or maintaining its Commitment or Contribution or performing its
obligations under this Agreement, or of having outstanding all or any part
of its Contribution or other unpaid
sums;
|
|
(b)
|
a
reduction in the amount of any payment to the Notifying Lender under this
Agreement or in the effective return which such a payment represents to
the Notifying Lender or on its
capital;
|
|
(c)
|
an
additional or increased cost of funding all or maintaining all or any of
the advances comprised in a class of advances formed by or including the
Notifying Lender's Contribution or (as the case may require) the
proportion of that cost attributable to the Contribution;
or
|
|
(d)
|
a
liability to make a payment, or a return foregone, which is calculated by
reference to any amounts received or receivable by the Notifying Lender
under this Agreement;
|
but
not an item attributable to a change in the rate of tax on the overall net
income of the Notifying Lender (or a parent company of it) or an item covered by
the indemnity for tax in Clause 21.1 or by Clause 22.
For
the purposes of this Clause 22.2 the Notifying Lender may in good faith allocate
or spread costs and/or losses among its assets and liabilities (or any class of
its assets and liabilities) on such basis as it considers
appropriate.
|
22.3
|
Notification to Borrower of
claim for increased costs. The Agent shall promptly
notify the Borrower and the Security Parties of the notice which the Agent
received from the Notifying Lender under Clause
22.1.
|
39
|
22.4
|
Payment of increased
costs. The Borrower shall pay to the Agent, on the
Agent’s demand, for the account of the Notifying Lender the amounts which
the Agent from time to time notifies the Borrower that the Notifying
Lender has specified to be necessary to compensate the Notifying Lender
for the increased cost.
|
|
22.5
|
Notice of
prepayment. If the Borrower is not willing to continue
to compensate the Notifying Lender for the increased cost under Clause
22.4, the Borrower may give the Agent not less than 14 days’ notice of its
intention to prepay the Notifying Lender’s Contribution at the end of an
Interest Period.
|
|
22.6
|
Prepayment; termination of
Commitment. A notice under Clause 22.5 shall be
irrevocable; the Agent shall promptly notify the Notifying Lender of the
Borrower’s notice of intended prepayment;
and:
|
|
(a)
|
on
the date on which the Agent serves that notice, the Commitment of the
Notifying Lender shall be cancelled;
and
|
|
(b)
|
on
the date specified in its notice of intended prepayment, the Borrower
shall prepay (without premium or penalty) the Notifying Lender’s
Contribution, together with accrued interest thereon at the applicable
rate (including the Mandatory Cost, if any) plus the
Margin.
|
|
22.7
|
Application of
prepayment. Clause 8 shall apply in relation to the
prepayment.
|
|
23
|
SET-OFF
|
|
23.1
|
Application of credit
balances. Each Creditor Party may without prior
notice:
|
|
(a)
|
apply
any balance (whether or not then due) which at any time stands to the
credit of any account in the name of the Borrower at any office in any
country of that Creditor Party in or towards satisfaction of any sum then
due from the Borrower to that Creditor Party under any of the Finance
Documents; and
|
|
(b)
|
for
that purpose:
|
|
|
(i)
|
break,
or alter the maturity of, all or any part of a deposit of the
Borrower;
|
|
|
(ii)
|
convert
or translate all or any part of a deposit or other credit balance into
Dollars;
|
|
|
(iii)
|
enter
into any other transaction or make any entry with regard to the credit
balance which the Creditor Party concerned considers
appropriate.
|
|
23.2
|
Existing rights
unaffected. No Creditor Party shall be obliged to
exercise any of its rights under Clause 23.1; and those rights shall be
without prejudice and in addition to any right of set-off, combination of
accounts, charge, lien or other right or remedy to which a Creditor Party
is entitled (whether under the general law or any
document).
|
|
23.3
|
Sums deemed due to a
Lender. For the purposes of this Clause 23, a sum
payable by the Borrower to the Agent or the Security Trustee for
distribution to, or for the account of, a Lender shall be treated as a sum
due to that Lender; and each Lender’s proportion of a sum so payable for
distribution to, or for the account of, the Lenders shall be treated as a
sum due to such Lender.
|
40
|
23.4
|
No Security
Interest. This Clause 23 gives the Creditor Parties a
contractual right of set off only, and does not create any equitable
charge or other Security Interest over any credit balance of the
Borrower.
|
|
24
|
TRANSFERS
AND CHANGES IN LENDING OFFICES
|
|
24.1
|
Transfer by
Borrower. The Borrower may not without the consent of
the Agent, given on the instructions of all the Lenders transfer any of
its rights or obligations under any Finance
Document.
|
|
24.2
|
Transfer by a
Lender. Subject to Clause 24.4, a Lender (the “Transferor Lender”) may
at any time after the Drawdown Date, at its own cost and with the prior
consent of the Borrower (not to be unreasonably withheld or delayed),
cause:
|
|
(a)
|
its
rights in respect of all or part of its Contribution;
or
|
|
(b)
|
its
obligations in respect of all or part of its Commitment;
or
|
|
(c)
|
a
combination of (a) and (b);
|
to
be (in the case of its rights) transferred to, or (in the case of its
obligations) assumed by, another bank or financial institution (a “Transferee Lender”) by
delivering to the Agent a completed certificate in the form set out in Schedule
4 with any modifications approved or required by the Agent (a “Transfer Certificate”)
executed by the Transferor Lender and the Transferee
Lender. Notwithstanding the foregoing, no consent of the Borrower
will be required for any such transfer to another Lender or to an affiliate of a
Lender.
Any
rights and obligations of the Transferor Lender in its capacity as Agent or
Security Trustee will be dealt with separately in accordance with the Agency and
Trust Deed.
|
24.3
|
Transfer Certificate, delivery
and notification. As soon as reasonably practicable
after a Transfer Certificate is delivered to the Agent, it shall (unless
it has reason to believe that the Transfer Certificate may be
defective):
|
|
(a)
|
sign
the Transfer Certificate on behalf of itself, the Borrower, the Security
Parties, the Security Trustee and each of the other
Lenders;
|
|
(b)
|
on
behalf of the Transferee Lender, send to the Borrower and each Security
Party letters or faxes notifying them of the Transfer Certificate and
attaching a copy of it;
|
|
(c)
|
send
to the Transferee Lender copies of the letters or faxes sent under
paragraph (b).
|
|
24.4
|
Effective Date of Transfer
Certificate. A Transfer Certificate becomes effective on
the date, if any, specified in the Transfer Certificate as its effective
date Provided that
it is signed by the Agent under Clause 24.3 on or before that
date.
|
|
24.5
|
No transfer without Transfer
Certificate. No assignment or transfer of any right or
obligation of a Lender under any Finance Document is binding on, or
effective in relation to, the Borrower, any Security Party, any other
Lender, the Agent or the Security Trustee unless it is effected, evidenced
or perfected by a Transfer
Certificate.
|
41
|
24.6
|
Lender re-organisation; waiver
of Transfer Certificate. If a Lender enters into any
merger, de-merger or other reorganisation as a result of which all its
rights or obligations vest in a successor, the Agent may, if it sees fit,
by notice to the successor and the Borrower and the Security Trustee waive
the need for the execution and delivery of a Transfer Certificate; and,
upon service of the Agent’s notice, the successor shall become a Lender
with the same Commitment and Contribution as were held by the predecessor
Lender.
|
|
24.7
|
Effect of Transfer
Certificate. A Transfer Certificate takes effect in
accordance with English law as
follows:
|
|
(a)
|
to
the extent specified in the Transfer Certificate, all rights and interests
(present, future or contingent) which the Transferor Lender has under or
by virtue of the Finance Documents are assigned to the Transferee Lender
absolutely, free of any defects in the Transferor Lender’s title and of
any rights or equities which the Borrower or any Security Party had
against the Transferor Lender;
|
|
(b)
|
the
Transferor Lender’s Commitment is discharged to the extent specified in
the Transfer Certificate;
|
|
(c)
|
the
Transferee Lender becomes a Lender with the Contribution previously held
by the Transferor Lender and a Commitment of an amount specified in the
Transfer Certificate;
|
|
(d)
|
the
Transferee Lender becomes bound by all the provisions of the Finance
Documents which are applicable to the Lenders generally, including those
about pro-rata sharing and the exclusion of liability on the part of, and
the indemnification of, the Agent and the Security Trustee and, to the
extent that the Transferee Lender becomes bound by those provisions (other
than those relating to exclusion of liability), the Transferor Lender
ceases to be bound by them;
|
|
(e)
|
any
part of the Loan which the Transferee Lender advances after the Transfer
Certificate’s effective date ranks in point of priority and security in
the same way as it would have ranked had it been advanced by the
transferor, assuming that any defects in the transferor’s title and any
rights or equities of the Borrower or any Security Party against the
Transferor Lender had not existed;
|
|
(f)
|
the
Transferee Lender becomes entitled to all the rights under the Finance
Documents which are applicable to the Lenders generally, including but not
limited to those relating to the Majority Lenders and those under Clause
5.5 and Clause 19, and to the extent that the Transferee Lender becomes
entitled to such rights, the Transferor Lender ceases to be entitled to
them; and
|
|
(g)
|
in
respect of any breach of a warranty, undertaking, condition or other
provision of a Finance Document or any misrepresentation made in or in
connection with a Finance Document, the Transferee Lender shall be
entitled to recover damages by reference to the loss incurred by it as a
result of the breach or misrepresentation, irrespective of whether the
original Lender would have incurred a loss of that kind or
amount.
|
The
rights and equities of the Borrower or any Security Party referred to above
include, but are not limited to, any right of set off and any other kind of
cross-claim.
42
|
24.8
|
Maintenance of register of
Lenders. During the Security Period the Agent shall
maintain a register in which it shall record the name, Commitment,
Contribution and administrative details (including the lending office)
from time to time of each Lender holding a Transfer Certificate and the
effective date (in accordance with Clause 24.4) of the Transfer
Certificate; and the Agent shall make the register available for
inspection by any Lender, the Security Trustee and the Borrower during
normal banking hours, subject to receiving at least 3 Business Days’ prior
notice.
|
|
24.9
|
Reliance on register of
Lenders. The entries on that register shall, in the
absence of manifest error, be conclusive in determining the identities of
the Lenders and the amounts of their Commitments and Contributions and the
effective dates of Transfer Certificates and may be relied upon by the
Agent and the other parties to the Finance Documents for all purposes
relating to the Finance Documents.
|
|
24.10
|
Authorisation of Agent to sign
Transfer Certificates. The Borrower, the Security
Trustee and, each Lender irrevocably authorises the Agent to sign Transfer
Certificates on its behalf.
|
|
24.11
|
Registration
fee. In respect of any Transfer Certificate, the Agent
shall be entitled to recover a registration fee of $1,500 from the
Transferor Lender or (at the Agent’s option) the Transferee Lender plus
any legal expenses incurred by the Agent in connection with a transfer
pursuant to this Clause 24.
|
|
24.12
|
Sub-participation; subrogation
assignment. A Lender may sub-participate all or any part
of its rights and/or obligations under or in connection with the Finance
Documents without the consent, or notice to, the Borrower, any Security
Party, any other Lender, the Agent or the Security Trustee and the Lenders
may assign, in any manner and terms agreed by the Majority Lenders, the
Agent and the Security Trustee, all or any part of those rights to an
insurer or surety who has become subrogated to
them.
|
|
24.13
|
Disclosure of
information. A Lender may disclose to a potential
Transferee Lender or sub-participant any information which the Lender has
received in relation to the Borrower, any Security Party or their affairs
under or in connection with any Finance Document, unless the information
is clearly of a confidential
nature.
|
|
24.14
|
Change of lending
office. A Lender may change its lending office by giving
notice to the Agent and the change shall become effective on the later
of:
|
|
(a)
|
the
date on which the Agent receives the notice;
and
|
|
(b)
|
the
date, if any, specified in the notice as the date on which the change will
come into effect.
|
|
24.15
|
Notification. On
receiving such a notice, the Agent shall notify the Borrower and the
Security Trustee; and, until the Agent receives such a notice, it shall be
entitled to assume that a Lender is acting through the lending office of
which the Agent last had notice.
|
|
24.16
|
Tax indemnity, tax gross-up and
increased costs on assignment, transfer and change of lending
office. If:
|
|
(a)
|
a
Lender assigns or transfers any rights or obligations under the Finance
Documents or changes its lending office;
and
|
|
(b)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs the Borrower would be obliged to make a payment to the
Transferee Lender or Lender acting through its new lending office under
Clause 19.1 in respect of any tax, Clause 20 or Clause 22,
|
43
| then the Transferee Lender or the Lender acting through its new lending office is only entitled to receive payment under those Clauses to the same extent as the Transferor Lender or the Lender acting through its previous lending office would have been if the assignment, transfer or change had not occurred. |
|
25
|
VARIATIONS
AND WAIVERS
|
|
25.1
|
Variations, waivers etc. by
Majority Lenders. Subject to Clause 25.2, a document
shall be effective to vary, waive, suspend or limit any provision of a
Finance Document, or any Creditor Party’s rights or remedies under such a
provision or the general law, only if the document is signed, or
specifically agreed to by fax, by the Borrower, by the Agent acting with
the consent and on behalf of the Majority Lenders, by the Agent and the
Security Trustee in their own rights, and, if the document relates to a
Finance Document to which a Security Party is party, by that Security
Party.
|
|
25.2
|
Variations, waivers etc.
requiring agreement of all Lenders. However, as regards
the following, Clause 25.1 applies as if the words “by the Agent acting
with the consent and on behalf of the Majority Lenders” were replaced by
the words “by the Agent acting with the consent and on behalf of, every
Lender”:
|
|
(a)
|
a
change in the Margin or in the definition of
LIBOR;
|
|
(b)
|
a
change to the date for, the amount of, any payment of principal, interest,
fees, or other sum payable under this
Agreement;
|
|
(c)
|
a
change to any Lender’s Commitment (but, for the avoidance of doubt, this
change does not apply to a transfer by a Lender of part or all of its
Commitment, to which only Clause 24
applies);
|
|
(d)
|
an
extension of Availability Period;
|
|
(e)
|
a
change to the definition of “Majority Lenders” or “Finance
Documents”;
|
|
(f)
|
a
change to the preamble or to Clause 2, 3, 4, 5.1, 15, 17 or
28;
|
|
(g)
|
a
change to this Clause 25;
|
|
(h)
|
any
release of, or material variation to, a Security Interest, guarantee,
indemnity or subordination arrangement set out in a Finance Document;
and
|
|
(i)
|
any
other change or matter as regards which this Agreement or another Finance
Document expressly provides that each Lender’s consent is
required.
|
44
|
25.3
|
Exclusion of other or implied
variations. Except for a document which satisfies the
requirements of Clauses 25.1 and 25.2, no document, and no act, course of
conduct, failure or neglect to act, delay or acquiescence on the part of
the Creditor Parties or any of them (or any person acting on behalf of any
of them) shall result in the Creditor Parties or any of them (or any
person acting on behalf of any of them) being taken to have varied,
waived, suspended or limited, or being precluded (permanently or
temporarily) from enforcing, relying on or
exercising:
|
|
(a)
|
a
provision of this Agreement or another Finance Document;
or
|
|
(b)
|
an
Event of Default; or
|
|
(c)
|
a
breach by the Borrower or a Security Party of an obligation under a
Finance Document or the general law;
or
|
|
(d)
|
any
right or remedy conferred by any Finance Document or by the general
law;
|
and
there shall not be implied into any Finance Document any term or condition
requiring any such provision to be enforced, or such right or remedy to be
exercised, within a certain or reasonable time.
|
26
|
NOTICES
|
|
26.1
|
General. Unless
otherwise specifically provided, any notice under or in connection with
any Finance Document shall be given by letter or fax; and references in
the Finance Documents to written notices, notices in writing and notices
signed by particular persons shall be construed
accordingly.
|
|
26.2
|
Addresses for
communications. A notice shall be
sent:
|
|
(a)
|
to
the Borrower:
|
00
Xxxxx Xxxxxx
|
Xxxxxxx
Xxxxxx
Fax
No. x000 000 00000
Att: Xx
Xxxxxxxxx Xxxxxxxxxxx
Copied
to:
Dryships
Inc., Omega Building
00
Xxxxxxxx Xxxxxx
XX
- 000 00
Xxxxxxx
Xxxxxx
Xxxxxx
Fax
No. x00 000 0000000
Att: Xx
Xxxxxxxxxx Xxxxxxxxx
|
(b)
|
to
a Lender: |
|
|
At
the address opposite its name in Schedule 1 or (as the case may require)
in the relevant Transfer
Certificate.
|
45
|
(c)
|
to
the Agent and/or
the
Security Trustee
|
0xx
Xxxxx, Xxxx Xxxxx House,
00 Xxxxxxxxxx Xxxxxx
|
Xxxxxx XX0X 0XX
Fax No.: + 00 00 0000
0000
Attn: Nordea Loan
Administration
with a copy to:
Fax No. x00 00 0000
0000
Att: Nordea Shipping
London
or
to such other address as the relevant party may notify the Agent or, if the
relevant party is the Agent or the Security Trustee, the Borrower, the Lenders
and the Security Parties.
|
26.3
|
Effective date of
notices. Subject to Clauses 26.4 and
26.5:
|
|
(a)
|
a
notice which is delivered personally or posted shall be deemed to be
served, and shall take effect, at the time when it is
delivered;
|
|
(b)
|
a
notice which is sent by fax shall be deemed to be served, and shall take
effect, 2 hours after its transmission is
completed.
|
|
26.4
|
Service outside business
hours. However, if under Clause 26.3 a notice would be
deemed to be served:
|
|
(a)
|
on
a day which is not a business day in the place of receipt;
or
|
|
(b)
|
on
such a business day, but after 5 p.m. local
time;
|
the
notice shall (subject to Clause 26.5) be deemed to be served, and shall take
effect, at 9 a.m. on the next day which is such a business day.
|
26.5
|
Illegible
notices. Clauses 26.3 and 26.4 do not apply if the
recipient of a notice notifies the sender within 1 hour after the time at
which the notice would otherwise be deemed to be served that the notice
has been received in a form which is illegible in a material
respect.
|
|
26.6
|
Valid
notices. A notice under or in connection with a Finance
Document shall not be invalid by reason that its contents or the manner of
serving it do not comply with the requirements of this Agreement or, where
appropriate, any other Finance Document under which it is served
if:
|
|
(a)
|
the
failure to serve it in accordance with the requirements of this Agreement
or other Finance Document, as the case may be, has not caused any party to
suffer any significant loss or prejudice;
or
|
|
(b)
|
in
the case of incorrect and/or incomplete contents, it should have been
reasonably clear to the party on which the notice was served what the
correct or missing particulars should have
been.
|
46
|
26.7
|
English
language. Any notice under or in connection with a
Finance Document shall be in
English.
|
|
26.8
|
Meaning of
“notice”. In this Clause “notice” includes any
demand, consent, authorisation, approval, instruction, waiver or other
communication.
|
|
27
|
SUPPLEMENTAL
|
|
27.1
|
Rights cumulative,
non-exclusive. The rights and remedies which the Finance
Documents give to each Creditor
Party:
|
|
(a)
|
are
cumulative;
|
|
(b)
|
may
be exercised as often as appears expedient;
and
|
|
(c)
|
shall
not, unless a Finance Document explicitly and specifically states so, be
taken to exclude or limit any right or remedy conferred by any
law.
|
|
27.2
|
Severability of
provisions. If any provision of a Finance Document is or
subsequently becomes void, unenforceable or illegal, that shall not affect
the validity, enforceability or legality of the other provisions of that
Finance Document or of the provisions of any other Finance
Document.
|
|
27.3
|
Counterparts. A
Finance Document may be executed in any number of
counterparts.
|
|
27.4
|
Third party
rights. No person who is not a party to this Agreement
has any right under the Contracts (Rights of Third Parties) Xxx 0000 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
|
28
|
LAW
AND JURISDICTION
|
|
28.1
|
English
law. This Agreement shall be governed by, and construed
in accordance with, English law.
|
|
28.2
|
Exclusive English
jurisdiction. Subject to Clause 28.3, the courts of
England shall have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this
Agreement.
|
|
28.3
|
Choice of forum for the
exclusive benefit of Creditor Parties. Clause 28.2 is
for the exclusive benefit of the Creditor Parties, each of which reserves
the rights:
|
|
(a)
|
to
commence proceedings in relation to any matter which arises out of or in
connection with this Agreement in the courts of any country other than
England and which have or claim jurisdiction to that matter;
and
|
|
(b)
|
to
commence such proceedings in the courts of any such country or countries
concurrently with or in addition to proceedings in England or without
commencing proceedings in England.
|
The
Borrower shall not commence any proceedings in any country other than England in
relation to a matter which arises out of or in connection with this
Agreement.
47
|
28.4
|
Process
agent. The Borrower irrevocably appoints Ince & Co
(att: Xx. Xxxxxxx Xxxxxxx, Partner) at their office for the time being,
presently at 0 Xx. Xxxxxxxxx’x Xxx, Xxxxxx X0X 0XX, 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
Agreement.
|
|
28.5
|
Creditor Party rights
unaffected. Nothing in this Clause 28 shall exclude or
limit any right which any Creditor Party may have (whether under the law
of any country, an international convention or otherwise) with regard to
the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any
jurisdiction.
|
|
28.6
|
Meaning of
“proceedings”. In this Clause 28, “proceedings” means
proceedings of any kind, including an application for a provisional or
protective measure.
|
|
AS WITNESS the hands of
the duly authorised officers or attorneys of the parties the day and year
first before written.
|
48
SCHEDULE
1
LENDERS
AND COMMITMENTS
PART
A
|
Lender
|
Lending
Office
|
Commitment
($)
|
|
Nordea
Bank Finland Plc, London Branch
|
0xx
Xxxxx, Xxxx Xxxxx Xxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxx
XX0X
0XX
Fax
No: + 00 00 0000 0000
|
$260,000,000
|
49
SCHEDULE
2
DRAWDOWN
NOTICE
To: Nordea
Bank Finland Plc, London Branch
Attention: [l]
Fax No. +[l]
[l] 2007
DRAWDOWN
NOTICE
|
1
|
We
refer to the loan agreement (the “Loan Agreement”) dated
[l] 2007 and
made between ourselves, as Borrower, the Lenders referred to therein, and
yourselves as Agent and as Security Trustee in connection with a loan
facility of up to US$260,000,000. Terms defined in the Loan
Agreement have their defined meanings when used in this Drawdown
Notice.
|
|
2
|
We
request to borrow the Advance under the Loan Agreement to be applied, as
follows:
|
|
(a)
|
Amount:
US$[l];
|
|
(b)
|
Drawdown
Date: [l];
|
|
(c)
|
Duration
of the first Interest Period shall be [l]
months;
|
|
(d)
|
Payment
instructions : [l].
|
|
3
|
We
represent and warrant that:
|
|
(a)
|
the
representations and warranties in Clause 10 of the Loan Agreement would
remain true and not misleading if repeated on the date of this notice with
reference to the circumstances now
existing;
|
|
(b)
|
no
Event of Default or Potential Event of Default has occurred or will result
from the borrowing of such Advance.
|
|
4
|
This
notice cannot be revoked without the prior consent of the Majority
Lenders.
|
Name
of Signatory
.........................................................
for
and on behalf of
PRIMELEAD
LIMITED
50
SCHEDULE
3
CONDITION
PRECEDENT DOCUMENTS
PART
A
The
following are the documents referred to in Clause 9.1(a).
|
1
|
A
duly executed original of the Agency and Trust Deed, the Guarantee, the
Account Security Deed (and of each document required to be delivered by
the terms of each of them).
|
|
2
|
Copies
of the certificate of incorporation and constitutional documents of Ocean
Rig, the Borrower, the Shareholders and the
Guarantor.
|
|
3
|
Copies
of resolutions of the directors of the Borrower and the Guarantor and
shareholders of the Borrower authorising the execution of each of the
Finance Documents to which the Borrower and the Guarantor is a
party.
|
|
4
|
A
copy of the appointment of the Shareholders’ representative(s) to attend
the shareholders’ meeting of the Borrower approving the
purchase of the Ocean Rig Shares, the terms of the Loan, and the form of
the Finance Documents.
|
|
5
|
The
original of any power of attorney under which any Finance Document is
executed on behalf of the Borrower and the
Guarantor.
|
|
6
|
Certified
copies of all consents which the Borrower and the Guarantor requires to
enter into, or make any payment or perform any of its obligations under,
any Finance Document.
|
|
7
|
The
originals of any mandates or other documents required in connection with
the opening or operation of the Earnings
Account.
|
|
8
|
A
copy of the agreement between the Sellers and the Borrower relating to the
purchase of the Ocean Rig Shares.
|
|
9
|
Documentary
evidence that the agent for service of process named in Clause 28 has
accepted its appointment.
|
|
10
|
Any
documents required by the Agent in relation to money laundering due
diligence or “Know Your Client”
requirements.
|
|
11
|
If
the Agent so requires, in respect of any of the documents referred to
above, a certified English translation prepared by a translator approved
by the Agent.
|
51
PART
B
The
following are the documents referred to in Clause 9.1(b).
|
1
|
A
duly executed original of the Shares
Pledge.
|
|
2
|
Documentary
evidence that:
|
|
(a)
|
the
Ocean Rig Shares are owned by and registered in the name of the Borrower
on the VPS Account;
|
|
3
|
Favourable
legal opinions from lawyers appointed by the Agent in each of Cyprus,
Xxxxxxxx Islands and Norway in respect of the status, capacity and
authorisation of the Borrower and the Guarantor to enter into each of the
Finance Documents to which they are each a party and their legality,
validity, enforceability and compliance with any applicable rules
regulations or legislation.
|
|
4
|
If
the Agent so requires, in respect of any of the documents referred to
above, a certified English translation prepared by a translator approved
by the Agent.
|
|
5
|
Such
other documents, information or evidence as the Lender, acting reasonably,
may require in relation to the application of the relevant
Advance.
|
Each
of the copy documents delivered under this Schedule shall be certified as a
true, complete and up to date copy by a director or the secretary (or equivalent
officer) of the Borrower.
52
SCHEDULE
4
TRANSFER
CERTIFICATE
The
Transferor and the Transferee accept exclusive responsibility for ensuring that
this Certificate and the transaction to which it relates comply with all legal
and regulatory requirements applicable to them respectively.
|
To:
|
NORDEA BANK FINLAND PLC, LONDON
BRANCH for itself and for and on behalf of the Borrower, each
Security Party, the Security Trustee and each Lender, as defined in the
Loan Agreement referred to below.
|
Date:
[l]
|
1
|
This
Certificate relates to a Loan Agreement (the “Agreement”) dated [l] 2007 and made
between (1) PRIMELEAD LIMITED (the “Borrower”), (2) the
banks and financial institutions named therein and (3) Nordea Bank Finland
Plc, London Branch as Agent and Security Trustee for a loan facility of up
to US$260,000,000.
|
|
2
|
In
this Certificate, terms defined in the Agreement shall, unless the
contrary intention appears, have the same meanings when used in this
Certificate and in addition:
|
“Relevant Parties” means the
Agent, the Borrower, each Security Party, the Security Trustee and each
Lender;
“Transferor” means [full name]
of [lending office]; and
“Transferee” means [full name]
of [lending office].
|
3
|
The
effective date of this Certificate is [l] Provided that this
Certificate shall not come into effect unless it is signed by the Agent on
or before that date.
|
|
4
|
The
Transferor assigns to the Transferee absolutely all rights and interests
(present, future or contingent) which the Transferor has as Lender under
or by virtue of the Agreement and every other Finance Document in relation
to [l] per
cent. of its Contribution, which percentage represents $[l].
|
|
5
|
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 24 of the Agreement provides will become
binding on it upon this Certificate taking
effect.
|
|
6
|
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 24 of the
Agreement.
|
53
|
7
|
The
Transferor:
|
|
(a)
|
warrants
to the Transferee and each Relevant Party
that:
|
|
|
(i)
|
the
Transferor has full capacity to enter into this transaction and has taken
all corporate action and obtained all consents which are required in
connection with this transaction;
and
|
|
|
(ii)
|
this
Certificate is valid and binding as regards the
Transferor;
|
|
(b)
|
warrants
to the Transferee that the Transferor is absolutely entitled, free of
encumbrances, to all the rights and interests covered by the assignment in
paragraph 4 above;
|
|
(c)
|
undertakes
with the Transferee that the Transferor will, at its own expense, execute
any documents which the Transferee reasonably requests for perfecting in
any relevant jurisdiction the Transferee’s title under this Certificate or
for a similar purpose.
|
|
8
|
The
Transferee:
|
|
(a)
|
confirms
that it has received a copy of the Agreement and each of the other Finance
Documents;
|
|
(b)
|
agrees
that it will have no rights of recourse on any ground against the
Transferor, the Agent, the Security Trustee or any Lender in the event
that:
|
|
|
(i)
|
any
of the Finance Documents prove to be invalid or
ineffective;
|
|
|
(ii)
|
the
Borrower or any Security Party fails to observe or perform its
obligations, or to discharge its liabilities, under any of the Finance
Documents; or
|
|
|
(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 any of the Finance
Documents;
|
|
(c)
|
agrees
that it will have no rights of recourse on any ground against the Agent,
the Security Trustee or any Lender in the event that this Certificate
proves to be invalid or
ineffective;
|
|
(d)
|
warrants
to the Transferor and each Relevant Party
that:
|
|
|
(i)
|
it
has full capacity to enter into this transaction and has taken all
corporate action and obtained all consents which it needs to take or
obtain in connection with this transaction;
and
|
|
|
(ii)
|
this
Certificate is valid and binding as regards the Transferee;
and
|
|
(e)
|
confirms
the accuracy of the administrative details set out below regarding the
Transferee.
|
54
|
9
|
The
Transferor and the Transferee each undertake with the Agent and the
Security Trustee severally, 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 they or either of them may
incur in connection with this Certificate or any matter arising out of it,
except such as are shown to have been mainly and directly caused by the
gross and culpable 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:
Agent
Signed
for itself and for and on behalf of itself
as
Agent and for every other Relevant Party
Nordea
Bank Finland Plc, London Branch
By:
Date:
55
Administrative
Details of Transferee
Name
of Transferee:
Lending
Office:
Contact
Person
(Loan
Administration Department):
Telephone:
Telex:
Fax:
Contact
Person
(Credit
Administration Department):
Telephone:
Telex:
Fax:
Account
for payments:
|
Note:
|
This
Transfer Certificate alone may not be sufficient to transfer a
proportionate share of the Transferor’s interest in the security
constituted by the Finance Documents in the Transferor’s or Transferee’s
jurisdiction. It is the responsibility of each Lender to
ascertain whether any other documents are required for this
purpose.
|
56
SCHEDULE
5
FORM
OF COMPLIANCE CERTIFICATE
To: Nordea
Bank Finland Plc, London Branch
[l]
Dear
Sirs,
Loan Agreement dated [l] 2007 (the “Loan Agreement”) made
between (i) [l] as borrower (the “Borrower”), (ii)
the banks and financial institutions listed as lenders (the “Lenders”), (iii)
Nordea Bank Finland Plc, London Branch as agent for the Lenders and (iv) Nordea
Bank Finland Plc, London Branch as security trustee for the Lenders in
connection with a loan facility of US$260,000,000.
We
refer to the Loan Agreement.
Terms
defined in the Loan Agreement have their defined meanings when used in this
Compliance Certificate.
We
enclose with this certificate a copy of the [audited]/[unaudited] consolidated
accounts for the Group for the [Financial Year] [6-month period] ended [l]. The
accounts (i) have been prepared in accordance with all applicable laws and GAAP
all consistently applied, (ii) give a true and fair view of the state of affairs
of the Group at the date of the accounts and of its profit for the period to
which the accounts relate and (iii) fully disclose or provide for all
significant liabilities of the Group.
We
also enclose copies of the valuations of all the Fleet Vessels which were used
in calculating the Market Value Adjusted Total Assets of the Group as at [l].
The
Borrower represents that no Event of Default or Potential Event of Default has
occurred as at the date of this certificate [except for the following matter or
event [set out all material
details of matter or event]]. In addition as of [l], the Borrower confirms
compliance with the financial covenants set out in Clause 12.5 of the Loan
Agreement for the 6 months ending as of the date to which the enclosed accounts
are prepared.
We
now certify that, as at [l]:
|
(a)
|
the
Market Adjusted Equity Ratio is [l]:[l];
|
|
(b)
|
the
Interest Coverage Ratio of the Group is [l]:[l];
|
|
(a)
|
the
Market Value Adjusted Net Worth of the Group is $[l];
and
|
|
(b)
|
the
Liquid Funds of the Group is
$20,000,000.
|
Signed
Chief
Financial Officer of
Primelead
Limited
57
SCHEDULE
6 MANDATORY COST FORMULA
|
1
|
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
for the cost of compliance with (a) the requirements of the Financial
Services Authority (or any other authority which replaces all or any of
its functions) or (b) the requirements of the European Central
Bank.
|
|
2
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the "Additional Cost Rate")
for each Lender, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the Loan) and
will be expressed as a percentage rate per
annum.
|
|
3
|
The
Additional Cost Rate for any Lender lending from a lending office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender
in its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender’s participation in the Loan) of
complying with the minimum reserve requirements of the European Central
Bank in respect of loans made from that lending
office.
|
|
4
|
The
Additional Cost Rate for any Lender lending from a lending office in the
United Kingdom will be calculated by the Agent as
follows:
|
Where:
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Agent as being the average of the most recent
rates of charge supplied by the Lenders to the Agent pursuant to paragraph
6 below and expressed in pounds per
£1,000,000.
|
|
5
|
For
the purposes of this Schedule:
|
|
(a)
|
“Special
Deposits” has the meaning given to it from time to time
under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of
England;
|
|
(c)
|
“Fees
Rules” means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance of
deposits;
|
|
(d)
|
“Fee
Tariffs” means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors (ignoring any minimum
fee or zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount
rate);
|
58
|
(e)
|
“Participating Member
State” means any member state of the European Union that
adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Union relating to European Monetary Union;
and
|
|
(f)
|
“Tariff
Base” has the meaning given to it in, and will be
calculated in accordance with, the Fees
Rules.
|
|
6
|
If
requested by the Agent, each Lender lending from a lending office in the
United Kingdom shall, as soon as practicable after publication by the
Financial Services Authority, supply to the Agent, the rate of charge
payable by that Lender to the Financial Services Authority pursuant to the
Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Lender as being
the average of the Fee Tariffs applicable to that Lender for that
financial year) and expressed in pounds per £1,000,000 of the Tariff Base
of that Lender.
|
|
7
|
Each
Lender shall supply any information required by the Agent for the purpose
of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information in
writing on or prior to the date on which it becomes a
Lender:
|
|
(a)
|
the
jurisdiction of its lending office;
and
|
|
(g)
|
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Lender shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
|
8
|
The
rates of charge of each Lender lending from a lending office in the United
Kingdom for the purpose of calculating E shall be determined by the Agent
based upon the information supplied to it pursuant to paragraph 6 above
and on the assumption that, unless a Lender notifies the Agent to the
contrary, each Lender's obligations in relation to cash ratio deposits and
Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a lending office in the same
jurisdiction as its lending office.
|
|
9
|
The
Agent shall have no liability to any person if such determination results
in an Additional Cost Rate which over or under compensates any Lender and
shall be entitled to assume that the information provided by any Lender
pursuant to paragraphs 3, 6 and 7 above is true and correct in all
respects.
|
|
10
|
The
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for
each Lender based on the information provided by each Lender pursuant to
paragraphs 3, 6 and 7 above.
|
|
11
|
Any
determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all parties.
|
|
12
|
The
Agent may from time to time, after consultation with the Borrower and the
Lenders, determine and notify to all parties any amendments which are
required to be made to this Schedule in order to comply
with any change in law, regulation or any requirements from
time to time imposed by the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all
parties.
|
59
EXECUTION
PAGE
|
BORROWER
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
PRIMELEAD
LIMITED
|
)
|
|
in
the presence of:
|
)
|
|
LENDERS
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
NORDEA
BANK FINLAND PLC,
|
)
|
|
LONDON
BRANCH
|
)
|
|
in
the presence of:
|
)
|
|
AGENT
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
NORDEA
BANK FINLAND PLC,
|
)
|
|
LONDON
BRANCH
|
)
|
|
in
the presence of:
|
)
|
|
SECURITY
TRUSTEE
|
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
NORDEA
BANK FINLAND PLC,
|
)
|
|
LONDON
BRANCH
|
)
|
|
in
the presence of:
|
)
|
60
SK 23113 0002
868370
