SUPPLEMENTAL LETTER
Exhibit 4.25
SUPPLEMENTAL LETTER
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To:
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Trust Company Complex
Ajeltake Road
Ajeltake Island
Majuro
The Xxxxxxxx Xxxxxxx XX 00000
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From:
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HSH Nordbank XX
Xxxxxxx-Xxxxxxxxx-Xxxxx 00
X-00000Xxxxxxx
Xxxxxxx
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Dear Sirs
27 September 2012
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1
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Background.
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(A)
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By a loan agreement dated 31 March 2006 (as supplemented, amended and restated from time to time, the “Junior Loan Agreement”) and made between (1) DryShips Inc. as borrower (the “Borrower”), (ii) the banks and financial Institutions listed in Pert A of Schedule 1 thereto as lenders (the “Junior Lenders”), (iii) the banks and financial institutions listed in Part B of Schedule 1 thereto as swap banks (together, the “Swap Banks” and each a “Swap Bank”), (iv) ourselves as agent, lead arranger, lead bookrunner and security trustee and (v) Bank of Scotland plc as joint bookrunner, it was agreed that the Junior Lenders would make available to the Borrower a term loan and short-teen credit facilities of (originally) op to US$110,000,000 (the ‘Jailor Loan”) in aggregate.
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(B)
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By two ISDA master agreements (each on the 1992 1SDA Master Agreement (Multicurreney-crossborder) form) and each dated 31 March 2006 (the “Junior Master Agreement” and, in the plural, means both of them) made between the Borrower and a Swap Bank. the Borrower has entered into or will enter into certain Designated Transactions (as such term is defined in the said Junior Loan Agreement) pursuant to separate Confirmations (as such term is defined in the said Junior Loan Agreement).
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(C)
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By a letter (the “New Letter”) dated 20 April 2012 the Agent:
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(i)
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notified the Borrower there was a shortfall (the “Shortfall”) at that dine in the security cover required to be maintained pursuant to clause 15.1 of the Junior Loan Agreement; and
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(ii)
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called on the Borrower, pursuant to clause 15.1 of the Junior Loan Agreement within 14 days of the date of the New Letter, either:
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(1)
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to 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 which, if it consists of or includes a Security Interest, covers such asset or assets and is documented In such terms as we may, with authorisation from the Majority Lenders, approve or require; or
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(2)
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prepay In accordance with clause 8 of the Junior Loan Agreement such part (at least) of the Junior Loan as will eliminate the shortfall.
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(D)
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Following the Borrower’s non-compliance with the teens of the New Letter and clause 15.1 of the Junior Loan Agreement, by a letter dated 8 May 2012 we reserved the rights of the Creditor Parties under the Junior Loan Agreement and all other Finance Documents.
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(E)
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The Borrower Slur has requested and the Lenders agreed to receive certain additional security to rectify the Shortfall.
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(F)
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This Agreement sets out the terms and conditions on which the Lenders agree to:
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(i)
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receive certain additional security to rectify the Shortfall; and
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(ii)
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the consequential amendments to the Loan Agreement and the other Finance Documents In connection with those matters.
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Words and expressions in the Junior Loan Agreement shall have the same meaning when used in this Letter.
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2
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Agreement and amendments to the Junior Loan Agreement. Subject to the satisfaction of the conditions of this Letter and with effect from the date of this Letter, the Junior Loan Agreement shell be amended as follows:
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(a)
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by deleting the definition of ‘Shuts Pledge” in clause 1.2 thereof in its entirety;
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(b)
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by adding the following new definitions in clause 1.2 thereof:
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““Control Agreement” means, in respect of the Pledge and Security Agreement, a control agreement in respect of the control and ownership of the Required Shares executed between the Borrower, Ocean Rig as issuer and the Security Trustee in such form as the Lenders may approve or require;
“Pledge sad Security Agreement” means, In respect of the Required Shares, a pledge and security agreement executed by the Borrower in favour of the Security Trustee pursuant to Clause 15.10 in such form as the Lenders may approve or require;”;
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(c)
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by replacing the words “Shares Pledge” in sub-paragraph (w) in the definition of “Finance Documents” in clause 1.1 thereof with the words “Pledge and Security Agreement”;
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(d)
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by adding to the definition of “Finance Documents” In clause 1.1 thereof a new sub-paragraph (x) as follows:
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“(x) the Control Agreement;”,
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and by re-designating the existing sub-paragraph (x) in the definition of “Finance Documents* in clause 1.1 thereof as a new sub-paragraph (y);
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(e)
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by replacing therein clause 15.10 with the following new clause:
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“15.10 Additional security during the Additional Security Period. The Borrower undertakes with the Lenders: |
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(a)
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to execute and deliver on the first date of the Additional Security Period the Pledge and Security Agreement and, to cause Ocean Rig as issuer. to execute and deliver together with the Borrower, the Control Agreement referred to therein in respect of the Required Shares; and
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(b)
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deliver to the Agent such other documents equivalent to those referred to in paragraphs 3, 4 and 5 of Schedule 5, Part A as the Agent may require in connection with the execution of the Pledge and Security Agreement; and
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(c)
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to ensure that any additional security given pursuant to this Clause 15.10 shall remain in full force and effect until the last date of the Additional Security Period.
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In this Clause 15.10:
“Additional Security Period” means the period commencing on 1 April 2012 and ending on 30 June 2013;
“Required Shares” means 7,800,000 issued and outstanding shares of common stock in Ocean Rig (Including all other or additional stock or other securities or property paid or distributed in respect of the Required Shares by way of stock-split, spin-oft split-up, reclassification, combination of shares or similar arrangements) currently in the legal and beneficial ownership of the Borrower to be pledged in favour of the Security Trustee pursuant to this Clause 15.10 in order to rectify the Shortfall.” and
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(f)
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by construing all references therein to “this Agreement” where the context admits as being references to “this Agreement” as the same is amended and supplemented by this Letter.
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3
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Amendments to Finance Documents. With effect on and from the date of this letter each of the Finance Documents (other than the Junior Loan Agreement) shall be, and shall be deemed by this Agreement to have been, amended as follows:
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(a)
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the definition of and references throughout each of the Finance Documents to, the Junior Loan Agreement and any of the other Finance Documents shall be construed as if the same referred to the Junior Loan Agreement and those Finance Documents as amended and supplemented by this Letter; and
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(b)
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by construing references throughout each of the Finance Documents to “this Agreement”, “this Deed”, “hereunder and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Letter.
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4
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Junior Loan Agreement and Finance Documents. The Borrower hereby agrees with the Lenders that the provisions of the Junior Loan Agreement and the Finance Documents shall be and are hereby re-affirmed and remain in full three and effect.
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5
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Representations and Warranties. The Borrower hereby represents and warrants to the Lenders that:
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(a)
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the representations and warranties contained in the Junior Loan Agreement are true and correct on the date of this Letter as if all references therein to ‘this Agreement” were references to the Junior Loan Agreement as supplemented by this Letter; and
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(b)
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this Letter comprises the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms.
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6
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Conditions. Our agreement contained in paragraph 2 of this Letter shall be expressly subject to the condition that we shall have received in form and substance as may be approved or required by us on or before the signature hereof:
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(a)
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copies of resolutions passed at a meeting of the board of directors of the Borrower evidencing approval of this Letter, the Pledge and Security Agreement and the Control Agreement and authorising appropriate officers or attorneys to execute the same;
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(b)
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the original of any power of attorney issued in favour of any person executing this Letter, the Pledge and Security Agreement and the Control Agreement on behalf of the Borrower; and
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(c)
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a duly executed original of this Letter, the Pledge and Security Agreement and the Control Agreement;
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(d)
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evidence that the relevant UCC statement in respect of the Pledge and Security Agreement has been filed;
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(e)
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favourable legal opinions from lawyers appointed by the Agent on such matter concerning the laws of the Republic of the Xxxxxxxx Islands and such other relevant jurisdiction as the Agent may require; and
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(f)
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copies of all governmental and other consents, licences, approvals and authorisations as may be necessary to authorise the performance by the Borrower of its obligations under this Letter, the Pledge and Security Agreement and the Control Agreement and the execution, validity and enforceability of this Letter.
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7
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Notices. Clause 28 .(Notices) of the Junior Loan Agreement shall extend arid apply to this Letter as if the same were (mutatis mutandis) herein expressly set forth.
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8
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Governing Law. This Letter shall be governed by and construed in accordance with English law and Clause 30 (Law and Jurisdiction) of the Junior Loan Agreement shall extend and apply to this Letter as if the same were (mutatis mutandis) herein expressly set forth.
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Please confirm your acceptance to the foregoing terms and conditions by signing the acceptance at the foot of this letter.
Yours faithfully
/s/ Xxxxxxxxx Xxxxxxxxxxxx ________________
Xxxxxxxxx Xxxxxxxxxxxx
for and on behalf of
HSH NORDBANK AG
(as Agent for and on behalf
of all Creditor Parties)
Accepted and agreed
/s/ Xxxxxxxxx Glynos____________________
Xxxxxxxxx Xxxxxx
for and on behalf of
Dated: 27 September 2012
COUNTERSIGNED this 27 day of September 2012 for and on behalf of the below companies each of which, by its execution heteof confirms and acknowledges that it has mad and understood the terms and conditions of this supplemental letter, that it agrees in all respects to the same and that Finance Documents to which it is a xxxxx shall remain in full force and effect and shall continue to stand as security for the obligations of the Borrower under the Junior Loan Agreement, and the Junior Master Agreements.
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for and oh behalf of
WEALTH MANAGEMENT INC.
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for and on behalf of
SAMSARA SHIPPING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
MALVINA SHIPPING COMPANY LIMITED
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for and on behalf of
ARLETA NAVIGATION COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
BORSARI SHIPPING COMPANY LIMITED
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for and on behalf of
ONIL SHIPPING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
FABIANA NAVIGATION COMPANY LIMITED
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for and on behalf of
CELINE SHIPPING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
XXXXXX SHIPPING COMPANY LIMITED
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for and on behalf of
XXXXXX SHIPPING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
ARGO OWNING COMPANY LIMITED
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for and on behalf of
KRONOS OWNING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and oh behalf of
TETHYS OWNING COMPANY LIMITED.
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for and on behalf of
SELENE OWNING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
DIONE OWNING COMPANY LIMITED
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for and on behalf of
URANUS OWNING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
TEMPO MARINE CO.
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for and on behalf of
STAR RECORD OWNING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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for and on behalf of
REA OWNING COMPANY LIMITED
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for and on behalf of
PHOEBE OWNING COMPANY LIMITED
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Xxxxx
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Xx. Xxxxxxx Xxxxx
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