To: DryShips Inc. Trust Company Complex Ajeltake Road Ajeltake Island Majuro The Marshall Islands MH 96960 From: HSH Nordbank AG Gerhart-Hauptmann-Platz 50 D-20095 Hamburg Germany
Exhibit 4.13
| To: | DryShips Inc. | |
| Trust Company Complex | ||
| Ajeltake Road | ||
| Ajeltake Island | ||
| Majuro | ||
| The Xxxxxxxx Islands MH 96960 | ||
| From: | HSH Nordbank XX | |
| Xxxxxxx-Xxxxxxxxx-Xxxxx 50 | ||
| D-20095 Hamburg | ||
| Germany | ||
Dear Sirs
23 April 2008
| 1 | Background. |
| (A) | By a loan agreement dated 31 March 2006 (as supplemented and amended by a supplemental letter agreement dated 15 May 2006, a supplemental agreement dated 28 November 2006, a supplemental agreement dated 27 February 2008 and as amended and restated by an amending and restating agreement dated 23 May 2007, the “Junior Loan Agreement”) and made between (i) DryShips Inc. as borrower (the “Borrower”), (ii) the banks and financial institutions listed therein as lenders (the “Junior Lenders”), (iii) the banks and financial institutions listed therein as swap banks, (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-term credit facilities of (originally) up to US$110,000,000 (the “Junior Loan”) in aggregate. |
| (B) | The Borrower has requested certain amendments to the general, corporate and financial undertakings and the security cover provisions set out in Clauses 11, 12 and 15 of the Junior Loan Agreement. |
| 2 | 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 shall be amended as follows: |
| (a) | by adding at the end of Clause 11.2(b) thereof the words: |
“Provided that the Borrower may create or permit to arise any Security Interest over any asset (other than any asset over which a Creditor Party maintains a Security Interest pursuant to this Agreement, the Junior Loan Agreement or any of the other Finance Documents) in the normal course of its business”;
| (b) | by adding a paragraph at the end of Clause 11.3 thereof as follows: |
“Provided that the Borrower may make any transfer, lease or other disposal referred to in this Clause 11.3 if following such transfer, lease or other disposal it shall be able to comply with all the financial covenants referred to in Clause 12.4 and no Event of Default or Potential Event of Default shall arise.”;
| (c) | by adding a new paragraph (d) in Clause 11.4 thereof as follows: |
“(d) (in the case of the Borrower), incurred in the normal course of its business Provided that following the incurrence of such further liabilities or obligations the Borrower shall be able to comply with all the financial covenants referred to in Clause 12.4 and no Event of Default or Potential Event of Default shall arise.”;
| (d) | by deleting Clause 12.3(e) thereof in its entirety and re-designating Clauses 12.3(f) and (g) as Clauses 12.3(e) and (f) respectively; |
| (e) | by deleting the new Clause 12.3(e) (currently Clause 12.3(f)) thereof in its entirety and replacing it with the following: |
“(e) (other than through any investments permitted by Clause 12.3(a)), 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 if such acquisitions exceed at any time $10,000,000 (or the equivalent in any other currency) in aggregate; and”;
| (f) | by deleting Clause 12.4(a) thereof in its entirety and replacing it with the following: |
“(a) the Market Adjusted Equity Ratio for the Financial Year ending 31 December 2007 shall be not less than 0.2:1 and for the period commencing from the Financial Year ending 31 December 2008 and each subsequent Financial Year it shall not be less than 0.4:1;”
| (g) | by deleting Clause 12.4(c) thereof in its entirety and replacing it with the following: |
“(c) the Market Value Adjusted Net Worth of the Group shall not be less than:
| (i) | in the Financial Year ending 31 December 2007 $125,000,000 and the Financial Year ending 31 December 2008, $750,000,000; |
| (ii) | in each of the Financial Years ending respectively 31 December 2009 and 31 December 2010, $800,000,000; and |
| (iii) | in each subsequent Financial Year, $1,000,000,000;”; |
| (h) | by deleting Clause 12.4(d) thereof in its entirety and replacing it with the following: |
“(d) subject to Clause 12.10, at all times there is available to the Borrower and all the other members of the Group an aggregate amount of not less than $l00,000,000 (including, without limitation, any amount standing to the credit of the Debt Service Reserve Account) in immediately freely available and unencumbered bank or cash balances, of which amount not less than the Applicable Amount in aggregate shall be held in the Earnings Accounts and the Wealth Account.
In this Clause 12.4, “Applicable Amount” means:
| (i) | at all times until (but not including) 30 June 2009, $17,500,000; |
| (ii) | as at 30 June 2009, $45,000,000; |
| (iii) | in the 6-month period ending on 31 December 2009, $50,000,000; and |
| (iv) | in each subsequent Financial Year, $55,000,000”; |
| (i) | by adding a new Clause 12.9 as follows: |
“12.9 Interpretation of normal course of business. For the purposes of Clauses 11.2(b) and 11.4(d) the term “normal course of its business” shall mean with regard to the Borrower its business of owning shares in companies which are involved in every shipping sector and the oil and gas sector and in making investments in such sectors. The reference in Clause 12.3(a) to any change in the nature of the Borrower’s business shall be construed accordingly.”;
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“(j) by adding a new Clause 12.10 as follows:
“12.10 Charter coverage. The Borrower shall ensure that as from 1 January 2009 a Minimum Percentage of its Fleet Vessels (calculated by reference to the deadweight tonnage of the Fleet Vessels) shall be employed on charters for an average period of at least 24 months and at the following average minimum net charter rates:
| Minimum average time Charter rates (by Vessel type/ |
2009 | 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | |||||||
| Capesize |
70,000 | 40,000 | 32,000 | 32,000 | 32,000 | 32,000 | 32,000 | |||||||
| Kamsarmax |
— | 25,000 | 25,000 | 25,000 | 25,000 | 25,000 | 25,000 | |||||||
| Panamax |
40,000 | 24,000 | 18,000 | 20,000 | 20,000 | 20,000 | 20,000 | |||||||
| Handymax |
33,000 | 20,000 | 15,000 | 16,000 | 16,000 | 16,000 | 16,000 |
If the provisions of this Clause 12.10 are not complied with at any time, the Borrower and the other members of the Group shall be required to maintain an aggregate amount of not less than $110,000,000 in immediately freely available and unencumbered bank or cash balances and at any time when this Clause 12.10 is not being complied with Clause 12.4(d) shall be construed accordingly.
In this Clause 12.10, “Minimum Percentage” means:
| (i) | during the Financial Year ending on 31 December 2009, 25 per cent.; and |
| (ii) | at all times thereafter, 35 per cent.”; |
| (k) | by deleting in Clause 15.1 thereof the figure “150 per cent.” and replacing it with “the Relevant Percentage”; and |
| (l) | by adding at the end of Clause 15.1 thereof the following: |
“Relevant Percentage” means:
| (1) | in each of the Financial Years ending respectively 31 December 2008 and 31 December 2009, 170 per cent.; |
| (2) | in each of the Financial Years ending respectively 31 December 2010 and 31 December 2011, 160 per cent.; and |
| (3) | in each subsequent Financial Year, 140 per cent.”. |
| 3 | Representations and Warranties. The Borrower hereby represents and warrants to the Lenders that: |
| (a) | 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) | this Letter comprises the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms. |
| 4 | 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: |
| (a) | copies of resolutions passed at a meeting of the board of directors of the Borrower evidencing approval of this Letter and authorising appropriate officers or attorneys to execute the same: |
| (b) | the original of any power of attorney issued in favour of any person executing this Letter on behalf of the Borrower; and |
| (c) | 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 and the execution, validity and enforceability of this Letter. |
| 5 | 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 force and effect. |
| 6 | Notices. Clause 28 (Notices) of the Junior Loan Agreement shall extend and apply to this Letter as if the same were (mutatis mutandis) herein expressly set forth. |
| 7 | Fees. On the date of this Letter, the Borrower, shall pay to the Agent certain facility fees set out in the letter addressed to the Agent from the Borrower and dated the same date of this Letter. |
| 8 | 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. |
Please confirm your acceptance to the foregoing terms and conditions by signing the acceptance at the foot of this letter.
| Yours faithfully |
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|
| for and on behalf of |
| HSH NORDBANK AG |
| Accepted and agreed |
|
|
| for and on behalf of |
| DRYSHIPS INC. |
Dated 23 April 2008
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