exv10w39







	 	 	 	 	 



Exhibit 10.39




CONSULTANCY AGREEMENT



THIS AGREEMENT with effect from this 1st day of September 2010 by and between DRYSHIPS INC. a
Marshall Islands corporation having its registered office at Trust Company Complex,
Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “Company”) and VIVID
FINANCE LIMITED a company having its registered office at 10 Scope Street, Nicosia, Cyprus (the
“Consultant”).



BY WHICH, in consideration of the mutual covenants and agreements set forth
herein, the parties hereto agree as follows:



1. The Company. The Company has been engaged directly or through subsidiaries in the ownership,
operation and management of cargo vessels trading worldwide. The common shares of the Company are
quoted on NASDAQ Global Markets and as such the Company is subject to U.S. securities laws and
regulations.



2. Engagement. The Company hereby engages the Consultant to act as consultant on matters of
financing for the Company and for any affiliates, subsidiaries or holding companies .(the
“Affiliates”) as directed by the Company, and to provide the services set forth herein below to
this Agreement (the “Services”) as defined in the Scope of Works and the Consultant hereby accepts
such engagement.




3. SCOPE OF WORKS



The Consultant shall provide consulting services related to:





	 	(i)	 	Identifying, sourcing, negotiating and arranging new loan and credit facilities with
lenders/financial institutions
	 
	 	(ii)	 	Raising equity or debt in the public capital markets
	 
	 	(iii)	 	Identifying, sourcing, negotiating and arranging interest rate swaps
agreements, foreign currency contracts and forward exchange contracts.
	 
	 	(iv)	 	Renegotiating existing loan facilities, bonds etc.




 









 











4. FEES



In consideration of such services the Consultant shall receive fee of twenty basis points
(0.20%) on the total transaction amount.




5. DUTIES



The Consultant shall provide its services, using all its experience, resources and due
diligence. The Consultant undertakes to use all reasonable endeavors to provide the
services in accordance with Clause 3 hereof and to protect and promote the interests of
the Company in all matters relating to the provision of these services.




6. THE CONSULTANT’S RIGHT TO SUB-CONTRACT





	6.1	 	The Consultant shall be entitled to procure performance of the Consultant’s
obligations hereunder by its parent, subsidiary or associated companies or (in the case
of other services) third parties (hereinafter collectively called the “Sub-Consultant”)
in accordance with the following provisions of this Clause 6.1:






	 	(i)	 	Any such performance of all or any of the Consultant’s obligations by the
Sub-Consultant shall be and constitute full and sufficient performance by the
Consultant of their obligations hereunder;
	 
	 	(ii)	 	The Company hereby agrees with the Consultant that insofar as Sub-
Consultant performs the obligations of the Consultant, the Sub-Consultant
shall be entitled to the benefits of the provisions of Clause 9; and
	 
	 	(iii)	 	Any performance of the Consultant’s obligations by the Sub-Consultant shall
be without prejudice to the rights of the Company hereunder for any failure by
the Consultant in performance of the Consultant’s duties and obligations
hereunder and notwithstanding performance by the Sub-Consultant, the
Consultant shall remain solely responsible to the Company for performance of
its obligations hereunder.






	6.2	 	The provision of Clause 6.1 shall remain in force notwithstanding termination of this
Agreement.





7. RESPONSIBILITIES




7.1 FORCE MAJEURE



Neither the Company nor the Consultant shall be liable to the other for loss or damage
resulting from delay or failure to perform their obligations under this Agreement, or any
contract hereunder, either in whole or in part, when any such delay or failure shall be due
to causes beyond their control due to civil war, insurrections, strikes, riots, fires, floods,
explosions, earthquakes, serious accidents, or any acts of God, failure of transportation,
epidemics, quarantine restrictions, or labor trouble causing cessation, slow down, or
interruption of work.





 









 







In the event that a situation giving rise to force majeure which prevents a party from performing
under this Agreement, the parties shall confer as to the further fulfillment or termination of this
Agreement.




7.2 INDEMNITY — GENERAL



The Company hereby undertakes to indemnify and hold harmless the Consultant
and its employees, agents and subcontractors against all actions, proceedings, claims, demands
or liabilities whatsoever or howsoever arising out of or in connection with the
performance of this Agreement, and against and in respect of all Costs, loss, damages
and expenses on a full indemnity basis) which the Consultant may suffer or incur (either directly
or indirectly) in the course of the performance of this Agreement other than arising from the gross
negligence or willful misconduct of the Consultant.




7.3 IDEMNITY — TAX



Without prejudice to the general indemnity set out in Clause 7.2, the Company hereby undertakes to
indemnify’ and hold harmless the Consultant, its employees, agents and subcontractors against all
taxes, imposts and duties levied by any government, other than income taxes, as a result of the
trading or other activities of the Company and/or the Company’s Vessels whether or not such taxes,
imposts and duties are Jevied on the Company or the Consultant.



7.4 “HIMALAYA”



It is hereby expressly agreed that no employee or agent of the Consultant (including every
subcontractor from time to time employed by the Consultant and the employees of such
subcontractors) shall in any circumstances whatsoever be under any liability whatsoever to the
Company for any loss, damage or delay of whatsoever kind arising or resulting directly or
indirectly from any act neglect or default on his part while acting in the course of or in
connection with his employment and, without prejudice to the generality of the foregoing
provisions in this Clause, every exemption, limitation, condition and liberty herein contained and
every right, exemption from liability, defense and immunity of whatsoever nature applicable to the
Consultant or to which the Consultant is entitled hereunder shall also be available and shall
extend to protect every such employee or agent of the Consultant acting as aforesaid.



7.5 The provisions of Clause 7 shall remain in force notwithstanding termination of this Agreement.




8. DURATION



The term of this Agreement shall commence on the date of the execution of this agreement and
continue for a period of five (5) years.





 









 








9. TERMINATION OF AGREEMENT



Unless otherwise agreed in writing between the parties this Agreement may be terminated
as follows:





	9.1	 	At the end of its term unless extended by mutual agreement
	 
	9.2	 	The parties by mutual agreement may terminate this Agreement at any time
	 
	9.3	 	The Company may opt to terminate this Agreement by written notice to the
Consultant prior to actual termination date by observing a prior written notice period
of thirty (30) days





9.4 TERMINATION BY DEFAULT — THE COMPANY





	(i)	 	The Consultant shall be entitled to terminate the Agreement with immediate effect by
notice in writing if any moneys requested by the Consultant from the Company shall
not have been received in the Consultant’s nominated account within ten (10) days of
payment having been requested in writing by the Consultant or if the Company fails
to comply to the reasonable satisfaction of the Consultant with the requirements of
Clauses 4 and 7.
	 
	(ii)	 	If the Company fails to meet its obligations hereunder in any material respect for
reasons within its control.





9.5 TERMINATION BY DEFAULT — THE CONSULTANT



If the Consultant fails to meet its obligations under this Agreement in any material
respect for reasons within the control of the Consultant, the Company may give a written
notice to the Consultant specifying the default and requiring it to remedy the default as
soon as practically possible. In the event that the Consultant fails to remedy such default,
if remediable, within a reasonable time to the reasonable satisfaction of the Company, the
Company shall be entitled to terminate this Agreement with immediate effect by notice in
writing.




10. CONFIDENTIALITY





	10.1	 	Save for the purpose of the enforcing or carrying out as may be necessary their
respective rights or obligations, each party agrees to maintain and to use all
reasonable endeavors to procure that their respective officers and employees
maintain confidentiality and secrecy in respect of all information relating to the
other’s business received by it directly or indirectly pursuant to this Agreement.
	 
	10.2	 	As between the Company and the Consultant, the Company hereby agrees and
acknowledges that all title and property in and to the management manuals of the
Consultant and other written material of the Consultant concerning management




 









 












	 	 	functions and activities is vested in the Consultant and the Company agrees not to
disclose the same to any third party and, on the termination of this Agreement, to return all such
manuals and other materials to the Consultant. For the purposes of this Clause reference to “the
Consultant” includes the parent, subsidiary and associated companies of the Consultant and any
third parties providing services.





11. LAW AND ARBITRATION





	11.1	 	This Agreement shall be governed by English law and any dispute arising out of or in
connection with this Agreement shall be referred to arbitration in London in accordance with the
Arbitration Act 1996 or any statutory modification or reenactment thereof for the time
being in force.
	 
	11.2	 	The arbitration shall be conducted in accordance with the London Maritime Arbitrators’ (LMAA)
Terms current at the time when the arbitration is commenced.
	 
	11.3	 	Save as mentioned below, the reference shall be to three arbitrators, one to be appointed by
each party and the third by the two so appointed. A party wishing to refer a dispute to
arbitration shall appoint its arbitrator and send notice of such appointment to the other
party requiring the other party to appoint its arbitrator within
14 days of that notice and stating that it will appoint its arbitrator as sole
arbitrator unless the other party appoints its own arbitrator and give
notice that it has done so within the 14 days specified. If the
other party does not appoint its own arbitrator and give notice
that it has done so within the 14 days specified, the party referring the
dispute to arbitration may, without the requirement of any further prior notice to
the other party accordingly. The award of a sole arbitrator shall be as binding
as if he had been appointed by agreement.
	 
	11.4	 	In cases where neither the claim nor any counterclaim exceeds the sum of USD
50,000 (or such other sum as the parties may agree) the arbitration shall be conducted in
accordance with the LMAA Small Claims Procedure current at the time when the arbitration
proceedings are commenced,





12. NOTICES





	12.1	 	Any notice or other communication required to be given or made hereunder shall be in writing
and may be served by sending same by registered airmail, electronic mail, telex, facsimile or by
delivering the same (against receipt) to the address of the party to be served to such address as
may from time to time be notified by the party for the purpose.
	 
	12.2	 	Any notice served by post as aforesaid shall be deemed conclusively duly served five days
after the same shall have posted. Notices served by telex aforesaid shall be deemed conclusively to
have been served on the day following of the same, provided evidence of transmission appears on the
particular notice.




 









 












Notices to the Consultant shall be made as follows:




VIVID FINANCE LIMITED

10 Skopa Street

CY-1075 Nicosia

P.O.Box 24736

CY-1303 Nicosia

Cyprus

Tel: (+357) 22 76 75 15

Fax: (+357) 22 76 15 42

Email: Law@kkgadvocates.com



Notice to Company shall be made as follows:




DRYSHIPS INC.

80 Kifissias Avenue

Amaroussion, GR-15125

Athens — Greece

Attn: Mr. Ziad Nakhleh, CFO

Phone: (+30) 210 809 0551

Fax: (+30) 210 809 0575

Email: management@dryships.com




13. CHANGE OF CONTROL





	13.1	 	In the event of a “Change of Control”, during the term of this Agreement, the Consultant has
the option to terminate this Agreement, cease providing the abovementioned services to the Company
within three (3) months following such Change in Control.
	 
	13.2	 	For the purposes of this Agreement, the term “Change of Control” shall mean the:
	 
	(i)	 	Acquisition by any individual, entity or group of beneficial ownership of fifty
percent (50%) or more of either (A) the then-outstanding shares of common stock of the Company or
(B) the combined voting power of the then-outstanding voting securities of the Company entitled to
vote generally in the election of directors;
	 
	(ii)	 	Consummation of a reorganization, merger or consolidation of the Company or the sale or other
disposition of all or substantially all of the assets of the Company and/or of the Affiliates; or
	 
	(iii)	 	Approval by the shareholders of the Company of a complete liquidation or dissolution of the
Company.




 









 











14. ENTIRE AGREEMENT





	14.1	 	This Agreement constitutes the entire agreement and understanding between the parties with
respect to the subject matter of the Agreement; and (in relation to such
subject matter) supersedes all prior discussions, understandings and agreements
between the parties and all prior representations and expressions of opinion by
the parties.
	 
	14.2	 	Each of the parties acknowledges that it is not relying on any statements, warranties,
representations or understandings (whether negligently or innocently made) given or made by or
on behalf of the other in relation to the subject matter hereof and that it shall have no
rights or remedies with respect to such subject matter otherwise than under this Agreement. The
only remedy available shall be for breach of contract under the terms of this
Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for
willful cause of loss.
	 
	14.3	 	For the avoidance of doubt it is noted that the provisions of this Agreement take
precedence and prevail over any other provisions in any earlier
agreement between the parties.




 









 











IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and year
first above written.




	 	 	 	 	 
	ON BEHALF OF THE COMPANY

 	 
	By:  	/s/ Mr Ziad Nakhleh
 	 
	 	Mr Ziad Nakhleh

Title: Chief Financial Officer 	 
	 	 	 



	 	 	 	 	 
	ON BEHALF OF VIVID FINANCE LIMITED

 	 
	By:  	/s/ Ms Yiannoula  Georghiades
 	 
	 	Ms Yiannouia  Georghiades

Title: Sole Director