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EX-25.1 — Statement re: Eligibility of Trustee — Form T-1|2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549 Form T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) [ ]
LAW DEBENTURE TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
C:
C:C:
New York
(Jurisdiction of incorporation or organization if not a U.S.
national bank)
400 Madison Avenue, 4th Floor, New York, New York
(Address of principal executive offices)
10017
(Zip Code)
C:
Law Debenture Trust Company of New York, 400 Madison Avenue, 4th Floor New York, NY10017, James D. Heaney, Managing Director, (212) 750-6474
(Name, address and telephone number of agent for services)
DryShips Inc.
(Exact name of obligor as specified in its charter)
Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Items 3-14.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as
provided under Item 13.
Item 15. Foreign Trustee.
Not applicable.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of eligibility.
1.
A copy of the articles of association of the trustee as now in effect. (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 333-127469, which is
incorporated by reference).
2.
A copy of the certificate of authority of the trustee to commence business, if not
contained in the articles of association. (see Exhibit 2 to Form T-1 filed in connection
with Registration Statement No. 333-127469, which is incorporated by reference).
3.
A copy of the existing bylaws of the trustee, or instruments corresponding thereto. ( see
Exhibit 3 to Form T-1 filed in connection with Registration Statement No. 333-127469, which
is incorporated by reference).
4.
The consents of the Trustee required by Section 321(b) of the Act. (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement 333-133414, which is incorporated by
reference).
5.
A copy of the latest report of condition of the trustee published pursuant to law or the
requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Law Debenture
Trust Company of New York, a trust company organized and existing under the laws of New York,
has duly caused this statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York, on the 13th
day of November, 2009.
a limited purpose trust company (“LDTC-NY”) and U.S. subsidiary of Law Debenture Corporation plc,
London, England (“Law Debenture”), at the close of business June 30, 2009, published with the
Federal Financial Institutions Examination Council/Board of Governors of the Federal Reserve
System, and in accordance with Chapter 2 of the Consolidated Laws of the State of New York Banking
Department license granted on May 8, 2002.
Prior to this Consolidated Report of Condition dated June 30, 2009, a Guarantee and Keep Well
Agreement (attached as Exhibit B hereto) was executed by subsidiaries of Law Debenture, to effect
capitalization of LDTC-NY in the total aggregate amount of $50,000,000, on July 12, 2002.
I, Kenneth J. Portera, Chief Executive Officer of Law Debenture Trust Company of New York do
hereby declare that this Report of Condition has been prepared in conformace with instructions
issued by the Board of Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
IN WITNESS WHEREOF, I have executed this certificate the 13th day of November, 2009.
Kenneth Portera
Chief Executive Officer
Law Debenture Trust Company of New York
I, James D. Heaney, Managing Director of Law Debenture Trust Company of New York, do hereby attest
that the signature set forth above is the true and genuine signature of Kenneth J. Portera, Chief
Executive of Law Debenture Trust Company of New York.
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 2009
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
Dollar Amounts in Thousands
RCON
Bil
Mil
Thou
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin1
0081
367
1.a.
b. Interest-bearing balances2
0071
4
260
1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)
1754
2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)
1773
2.b.
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold
B987
3.a.
b. Securities purchased under agreements to resell3
B989
3.b.
4. Loans and lease financing receivables (from Schedule RC-C)
a. Loans and leases held for sale
5369
4.a.
b. Loans and leases, net of unearned income
B528
4.b.
c. LESS: Allowance for loan and lease losses
3123
4.c.
d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c)
B529
4.d.
5. Trading assets (from Schedule RC-D)
3545
5.
6. Premises and fixed assets (including capitalized leases)
2145
6.
7. Other real estate owned (from Schedule RC-M
2150
7.
8. Investments in unconsolidated subsidiaries and associated companies
2130
8.
9. Direct and indirect investments in real estate ventures
3656
9.
10. Intangible assets:
a. Goodwill
3163
10.a.
b. Other intangible assets (from Schedule RC-M)
0426
10.b.
11. Other assets (from Schedule RC-F)
2160
1
086
11.
12. Total assets (sum of items 1 through 11)
2170
5
713
12.
1
Includes cash items in process of collection and unposted debits.
2
Includes time certificates of deposit not held for trading.
3
Includes all securities resale agreements, regardless of maturity.
FFIEC 041
PAGE RC-2
14
Schedule RC—Continued
Dollar Amounts in Thousands
RCON
Bil
Mil
Thou
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)
2200
13.
a.
(1) Noninterest-bearing1
6631
13.
a.(1)
(2) Interest-bearing
6636
13.
a.(2)
b. Not applicable
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased2
B993
14.
a.
b. Securities sold under agreements to repurchase3
B995
14.
b.
15. Trading liabilities (from Schedule RC-D)
3548
15.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)
(from Schedule RC-M)
3190
16.
17. and 18. Not applicable
19. Subordinated notes and debentures4
3200
19.
20. Other liabilities (from Schedule RC-G)
2930
2
328
20.
21. Total liabilities (sum of items 13 through 20)
2948
2
328
21.
22. Not applicable
EQUITY CAPITAL
Bank Equity Capital
23. Perpetual preferred stock and related surplus
3838
23.
24. Common stock
3230
1
24.
25. Surplus (excludes all surplus related to preferred stock)
3839
3
175
25.
26. a. Retained earnings
3632
209
26.
a.
b. Accumulated other comprehensive income5
B530
26.
b.
c. Other equity capital components6
A130
26.
c.
27. a. Total bank equity capital (sum of items 23 through 26.c)
3210
3
385
27.
a.
b. Noncontrolling (minority) interests in consolidated subsidiaries
3000
27.
b
28. Total equity capital (sum of items 27.a and 27.b)
G105
3
385
28.
29. Total liabilities and equity capital (sum of items 21 and 28)
3300
5
713
29.
Memoranda To be reported with the March Report of Condition.
RCON
Number
1. Indicate in the box at the right the
number of the statement below that best
describes the most comprehensive level of
auditing work performed for the bank by
independent external auditors as of any date
during 2008
M.1.
1 =
Independent
audit of the bank
conducted in
accordance with
generally accepted
auditing standards
by a certified
public accounting
firm which submits
a report on the
bank
2 =
Independent
audit of the bank’s
parent holding
company conducted
in accordance with
generally accepted
auditing standards
by a certified
public accounting
firm which submits
a report on the
consolidated
holding company
(but not on the
bank separately)
3 =
Attestation on
bank management’s
assertion on the
effectiveness of
the bank’s internal
control over
financial reporting
by a certified
public accounting
firm
4 =
Directors’ examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
5 =
Directors’ examination of the bank performed by other external
auditors (may be required by state chartering authority)
6 =
Review of the bank’s financial statements by external auditors
7 =
Compilation of the bank’ financial statements by external
auditors
8 =
Other audit procedures (excluding tax preparation work)
9 =
No external audit work
To be reported with the March Report of Condition.
RCON
MM
DD
2. Bank’s fiscal year-end date
8678
M.2.
1
Includes total demand deposits and noninterest-bearing time and savings deposits.
2
Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other
borrowed money.”
3
Includes all securities repurchase agreements, regardless of maturity.
4
Includes limited-life preferred stock and related surplus.
5
Includes net unrealized holding gains (losses) on available-for-sale securities,
accumulated net gains (losses) on cash flow hedges, and minimum pension liability adjustments.
6
Includes treasury stock and unearned Employee Stock Ownership Plan shares.
GUARANTEE AND WELL KEEP AGREEMENT
This Guarantee and Keep Well Agreement (the “Agreement”) dated as of July ___, 2002 is entered into
by and among Law Debenture Guarantee Limited (the “Guarantor”), LDC Trust Management Limited (the
“Parent”), and Law Debenture Trust Company of New York (the “Trust Company”).
WHEREAS, the Guarantor and the Trust Company are wholly-owned subsidiaries of the Parent;
WHEREAS, in order to enable the Trust Company to conduct its corporate trust business and meet
qualification requirements of documents pertaining to its acceptance of trust appointments, the
Trust Company requires combined capital and surplus of U.S. $50,000,000; and
WHEREAS, the Parent and Guarantor have determined that the execution and delivery by them of this
Agreement is necessary in order for the Trust Company to conduct, promote and attain corporate
trust business in the United States.
Now, THEREFORE, in consideration of the premises herein and intending to be legally bound by this
Agreement, each of the Guarantor, the Trust Company and the Parent Company hereby agree as follows:
1. Stock Ownership.
(a) During the term of this Agreement, the Parent will own, indirectly or directly, all of the
capital stock of the Trust Company and the Guarantor; provided, however, that, upon sixty (60)
days’ prior written notice to and the consent of the Trust Company (which consent shall not be
unreasonably withheld), the Guarantor may sell, transfer or otherwise assign any such capital stock
(or any interest therein) that it now owns or may hereafter acquire.
2. Covenants of the Parent.
It is understood and agreed by all parties hereto that the obligations under Section 3(a) are
solely those of the Guarantor and no recourse can be had in connection therewith against the
Parent.
(a) The Parent agrees that during the term of this Agreement, it shall not, without the prior
written consent of the Trust Company and the Guarantor, unless it has already contributed the
Maximum Aggregate Capitalization Amount (as defined below), cause the Guarantor to consolidate with
or merge into any corporation, or liquidate, wind up or dissolve the Guarantor (or otherwise cause
the Guarantor to suffer any liquidation, winding up or dissolution), or sell, transfer, lease or
otherwise dispose of all or substantially all of its assets, whether now owned or hereafter
acquired, to any person, except (i) the merger or consolidation of the Guarantor and any person,
provided, that the surviving corporation is the Guarantor, and (ii) sales, transfers, leases and
other dispositions of assets in the ordinary course of the Guarantor’s business, provided, that
such sale, transfer, lease or other disposition of assets does not materially adversely affect the
Guarantor’s ability to perform its obligations hereunder.
(b) If, during the term of this Agreement, the Guarantor is unable or refuses to perform its
obligations under Section 3(a) of this Agreement, the Parent may, at its option or at
the request of the Trust Company, cause such obligations to be performed. During the term of
this Agreement, the Parent aggress to monitor the financial condition and management of the
Guarantor and the Trust Company.
3. The Guarantee.
(a) The Guarantor hereby guarantees a combined capital and surplus to the Trust Company in the
amount of U.S. $50 million; provided, however, that the maximum amount of capitalization shall not
at any time exceed U.S. $50,000,000 in the aggregate (the “Maximum Aggregate Capitalization
Amount”). Under no circumstances shall the Guarantor be required to pay or contribute any amounts
in excess of the Maximum Aggregate Capitalization Amount hereunder.
(b) If, during the term of this Agreement, the Trust Company is unable to make timely payment
of any debt, liability or other obligations as the same shall become due (the “Guaranteed
Obligations”), the Trust Company shall request the Guarantor, and the Guarantor promptly shall
provide the Trust Company, pursuant to its obligations under (a) above, such funds (in the form of
cash or liquid assets in the amount sufficient to permit the Trust Company to make timely payment
in respect of such debt, liability or other obligation) as equity, provided, however, that such
Guaranteed Obligations shall not in the aggregate exceed the Maximum Aggregate Capitalization
Amount. Any request of r payment pursuant to this section shall specifically indentify the debt,
liability or other obligation in respect of which the Trust Company is unable to make timely
payment and with respect to which the Trust Company is unable to make timely payment with respect
to which the Trust Company seeks funds not to exceed the Maximum Aggregate Capitalization Amount.
Each of the Trust Company and the Guarantor hereby acknowledges that any funds provided by the
Guarantor pursuant thereto shall be used solely to make payment with respect to such indentified
Guaranteed Obligation and not for any other purposes. Notwithstanding any termination of this
Agreement as provided hereunder or otherwise, this Agreements shall continue in effect or be
reinstated with respect to the payment of a debt, liability or an obligation which is rescinded or
must otherwise be returned upon the insolvency, bankruptcy, reorganization, dissolution or
liquidation of the Trust Company, all as though such payment had not been made, provided, however,
that such Guaranteed Obligations shall not in the aggregate exceed the Maximum Aggregate
Capitalization Amount.
(c) Any payments made hereunder by the Guarantor to the Trust Company within 30 days after the
end of a quarterly period shall be deemed to have been made as of the end of such period.
(d) This Agreement may be amended from time to time by mutual written consent of duly
authorized officers of each of the Guarantor, the Parent and the Trust Company.
(e) This Agreement may be terminated only upon written notification to the Trust Company by
the Guarantor and the Parent, and in no event shall termination occur earlier than ninety days
following such written notification. Unless so terminated, this Agreement shall remain in effect
for the duration of the Trust Company’s conducting of trust business in the United States.
(f) The Guarantor hereby waives any failure or delay on the part of the Trust Company in
asserting or enforcing any of its rights or in making any claims or demands hereunder. The Trust
Company may at any time, without the Guarantor’s consent, without notice to the Guarantor and
without affecting or impairing the Trust Company’s rights, or impairing the Guarantor’s obligations
hereunder, do any of the following with respect to any obligation: (a) grant renewals and
extensions of time, for payment or otherwise, (b) accept new or additional documents, instruments
or agreements relating to or in substitution of said obligation, or (c) otherwise handle the
enforcement of its respective rights and remedies in accordance with its business judgment.
(g) Nothing in this Agreement, express or implied, shall give to any person, other than the
parties hereto and their successors and assigns hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
(h) The covenants herein set forth shall be mutually binding upon, and inure to the mutual
benefit of the Guarantor and its successors and assignees, the Trust Company and its respective
successors and assignees, and to the Parent and its respective successors and assignees.
(i) The obligations of the Guarantor under this Agreement are absolute and unconditional and
shall remain in full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise effected by, any circumstances or occurrence whatsoever,
including, without limitation:
(i) any lack of validity or enforceability of this Agreement or any other document or
instrument relating hereto;
(ii) any extension or renewal for one or more periods (whether or not longer than the
original period) or change in the time, manner, or place or payment of, or in any other term
of, all or any of the Guaranteed Obligations;
(iii) any change in the ownership of capital stock of the Trust Company or any change
in the identity or structure of the Trust Company, whether by consolidation, merger or
otherwise;
(iv) any release or amendment or waiver of or consent to departure form the terms of
this Agreement; or
(v) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, the Guarantor in respect to the Guaranteed Obligations in respect of this
Agreement.
4. Representations and Warranties.
(a) The Guarantee hereby represents that:
(i) the Guarantor is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation; and
(ii) The Guarantor has the requisite power and authority to execute, deliver, and
perform its obligations under this Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement.
(b) The Parent hereby represents that the Parent owns directly or indirectly 100% of the
issued and outstanding voting common stock of the Trust Company and the Guarantor.
5. Governing Law and Submission to Jurisdiction.
(a) Governing Law — This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflicts of law.
(b) The Parent and the Guarantor hereby irrevocably consent to and hereby submit themselves to
the jurisdiction of the United States District Court of the Southern District of New York (the “New
York Court”) solely in connection with any proceeding relating hereto.
(c) The Parent and the Guarantor hereby severally represent and warrant each in respect of
itself alone that it has no right to immunity from the service of process or jurisdiction of any
judicial proceedings of any competent court located pursuant to section (b) above or from execution
of any judgment in the United states or from the execution or enforcement therein of any
arbitration decision in respect of any suit, action, proceeding or any other matter solely arising
out of or relating to its obligations under this Agreement or the transactions contemplated hereby,
and to the extent that the Parent or the Guarantor, is or becomes entitled to any such immunity
with respect to the service of process or jurisdiction of any judicial proceedings of any competent
court located pursuant to section (b) above, and to the extent permitted by law, it does hereby and
will irrevocable and unconditionally agree not to plead or claim any such immunity solely with
respect to its obligations hereunder or any other matter under or arising out of or in connection
with this Agreement or the transactions contemplated hereby.
IN WITNESS WHEREOF, each of the Guarantor, the Trust Company and the Parent have caused this
Agreement to be executed by their respective duly authorized officers as of this 12th
day of July 2002.
