FIRST AMENDMENT AND WAIVER TO AMENDED AND RESTATED FACILITY AGREEMENT
Exhibit 4.62
EXECUTION VERSION
FIRST AMENDMENT AND WAIVER
TO AMENDED AND RESTATED FACILITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED FACILITY AGREEMENT (this "Amendment") is dated as of September 9, 2016 by and between DRYSHIPS INC., a corporation incorporated under the laws of the Republic of the Xxxxxxxx Islands (the "Borrower"), and SIFNOS SHAREHOLDERS INC., a corporation incorporated under the laws of the Republic of the Xxxxxxxx Islands (the "Lender"). Capitalized terms herein have the meanings specified in the Amended and Restated Secured Revolving Facility Agreement dated as of April 5, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the "Existing Facility Agreement" and as hereby amended, the "Facility Agreement"), by and between the Borrower and the Lender.
W I T N E S S E T H:
WHEREAS, pursuant to Section 8.01 of the Existing Facility Agreement, the Borrower has elected to convert $8,750,000 of the outstanding principal amount of the Loan into 3,500,000 preferred shares of the Borrower (the "Conversion") on or about September 13, 2016 (the "Conversion Date"); and
WHEREAS, the Lender is willing to consent to the Conversion on the condition that the Existing Facility Agreement be amended in connection therewith as provided below.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Borrower and the Lender hereby agree as follows:
1. AMENDMENT AND WAIVER
Effective as of the Amendment Effective Date (as defined below):
Section 1.01 Section 8.01. Section 8.01 shall be deleted and replaced in its entirety with the following:
"Preferred Stock Right. Upon three (3) Business Days' prior notice to the Lender and subject to the Lender's prior written consent, the Borrower may elect, at any time prior to the Maturity Date, to convert $8,750,000 of the outstanding principal amount of Loans into 3,500,000 preferred shares of the Borrower (the "Conversion Preferred Stock"). Each Conversion Preferred Stock shall have one hundred thousand (100,000) votes (vis-à-vis common stock of the Borrower) and shall not be convertible into common stock of DryShips; provided that the Borrower pays any overdue interest and commitment fees associated with the Facility Agreement.
Section 1.02 Waiver. The Lender hereby waives (i) any defaults which may be existing under the Facility Agreement for a period of 90 days from the Conversion Date and (ii) the three (3) Business Days' notice period requirement set forth in Section 8.01 of the Facility Agreement.
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2. CONDITION TO EFFECTIVENESS
This Amendment shall become effective only upon the satisfaction of each of the following conditions precedent (such satisfaction date being referred to herein as the "Amendment Effective Date"):
(a) The Lender shall have received a counterpart signature page to this Amendment duly executed and delivered by an authorized officer or representative of the Borrower; and
(b) The Lender shall have received a counterpart signature page to Acknowledgement and Agreement of Guarantor duly executed and delivered by an authorized officer or representative of the Guarantor.
3. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that, as of the Effective Date and as of the date of each disbursement:
(a) This Amendment has been duly authorized, executed and delivered by the Borrower, and constitutes a legal, valid and binding obligation of the Borrower in accordance with its terms. The Facility Agreement (as amended hereby) and each other Facility Document constitutes a legal, valid and binding obligation of the Borrower in accordance with its terms;
(b) Except for any Default of Event of Default of which the Borrower has informed the Lender prior to the date hereof or as contemplated under Section 1.02 above, immediately prior to and after giving effect to this Amendment, no Default or Event of Default shall exist; and
(c) at the time of and immediately after giving effect to this Amendment, (i) all representations and warranties of the Borrower set forth in the Facility Documents shall be true and correct in all material respects on and as of the date of this Amendment before and after giving effect thereto (unless stated to relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date), in each case other than representations and warranties that are subject to a Material Adverse Effect or a materiality qualifier, in which case such representations and warranties shall be (or shall have been) true and correct in all respects, and (ii) no Default shall have then occurred and be continuing.
4. COVENANT
In accordance with Section 11(a) of the Existing Facilities Agreement (as amended by this Amendment), the Borrower shall reimburse the Lender upon demand for all out-of-pocket expenses (including counsel's fees) incurred by the Lender in connection with this Amendment.
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5. MISCELLANEOUS
Section 5.01 Reference to and Effect on the Facility Agreement and the Other Facility Documents.
(a) This Amendment shall constitute a Facility Document for purposes of the Facility Agreement and the other Facility Documents. On and after the Amendment Effective Date, each reference in the Facility Agreement to "this Agreement", "herein", "hereunder", "hereto", "hereof" and words of similar import shall, unless the context otherwise requires, refer to the Facility Agreement as amended hereby, and each reference to the Facility Agreement in any other Facility Document shall be deemed to be a reference to the Facility Agreement as amended hereby; and
(b) Except as specifically modified by this Amendment, the Facility Agreement and the other Facility Documents shall remain unchanged and shall remain in full force and effect and are hereby ratified and confirmed.
Section 5.02 Headings. Section and subsection headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect.
Section 5.03 Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, United States of America.
Section 5.04 Counterparts. This Amendment may be executed in counterparts, and all such counterparts taken together shall be deemed to constitute one and the same instrument.
Section 5.05 Successors and Assigns. This Amendment shall be binding upon the Borrower and the Lender and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
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DRYSHIPS INC., as Borrower
By: /s/Xxxxxxxx Xxxxxxxxx Name: Dimitris Dveliozis Title: Financial Controller |
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SIFNOS SHAREHOLDERS INC., as Lender
By: /s/Savvas Tourmis Name: Savvas Tourmis Title: Attorney-in-fact |
[Signature Page — First Amendment to Amended and Restated Facility Agreement]
