Exhibit 4.43
Execution Copy
AMENDMENT TO THE RESTRUCTURING SUPPORT AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of April 7, 2017, to the Restructuring Support Agreement, dated as of March 23, 2017 among Ocean Rig UDW Inc. ("Parent"), Drillships Financing Holding Inc., Drillships Ocean Ventures Inc., Drill Rigs Holdings Inc. and the Supporting Creditors (the "RSA") is made among Parent and the Supporting Creditors listed on the signature pages hereto, which constitute the Majority Supporting Lenders. Capitalized terms used but not defined herein have the meanings set forth in the RSA.
RECITALS
WHEREAS, pursuant to Clause 12.1 of the RSA, holders of DFH Scheme Claims and DOV Scheme Claims are entitled to a pro rata portion of the Term Loan Early Consent Fee if they accede to the RSA by the Early Consent Date, and pursuant to Clause 12.2 of the RSA, holders of DRH Scheme Claims are entitled to a pro rata portion of the DRH Early Consent Fee if they accede to the RSA by the Early Consent Date; and
WHEREAS, Parent and the Majority Supporting Lenders desire to amend the RSA pursuant to this amendment in order to (i) extend the period for holders of DRH Scheme Claims to accede to the RSA and receive a pro rata portion of the DRH Early Consent Fee, (ii) clarify that purchasers under open trades pending as of the expiration of the applicable early consent date who have acceded to the RSA as Supporting Creditors as of such early consent date shall be entitled (subject to satisfaction of the other conditions described in Clause 12 of the RSA) to a pro rata portion of the Term Loan Early Consent Fee and the DRH Early Consent Fee, as applicable, and (iii) permit domestic, foreign and multinational banking and financial services corporations to execute the RSA solely on behalf of a desk or division of such institution.
NOW, THEREFORE, the parties hereto agree as follows:
1. | AMENDMENT |
As of the date hereof, the parties hereto hereby amend:
1.1 | The introductory section of the RSA to delete the description of "THE INITIAL SUPPORTING CREDITORS" and replace it with the following: |
THE INITIAL SUPPORTING CREDITORS listed in Schedule 2 (Initial Supporting Creditors) (the "Initial Supporting Creditors") and any other Supporting Creditor.
1.2 | Schedule 1(Definitions) of the RSA to delete the definition of "Early Consent Date" and to add the following definitions: |
"DRH Early Consent Date" means April 21, 2017.
"Supporting Creditor" means a Person listed on Schedule 2 (Initial Supporting Creditors) or any other Person that has acceded to this Agreement in accordance with Clause 13 (Accession), provided however, that if such person is a domestic, foreign or multinational banking and financial services corporation, and such
entity purports to sign on behalf of a desk/division, the term Supporting Creditor shall apply to only the desk/division that is purported to be bound by this Agreement.
"Term Loan Early Consent Date" means April 11, 2017.
1.3 | Clause 12.1(a) of the RSA is hereby amended to delete the term "Early Consent Date" and to replace that term with the phrase "Term Loan Early Consent Date (including a purchaser under an open trade that has not closed as of the Term Loan Early Consent Date)." |
1.4 | Clause 12.1(b) of the RSA is hereby amended to delete the term "Early Consent Date" and to replace that term with "Term Loan Early Consent Date." |
1.5 | Clauses 12.2(a) of the RSA is hereby amended to delete the term "Early Consent Date" and to replace that term with the phrase "DRH Early Consent Date (including a purchaser under an open trade that has not closed as of the DRH Early Consent Date)." |
1.6 | Clauses 12.2(b) of the RSA is hereby amended to delete the term "Early Consent Date" each time it appears in Clause 12.2 and to replace that term with "DRH Early Consent Date." |
1.7 | Clause 12.3 to delete the text thereof in its entirety and replace it with the following: |
(a) | Any Supporting Creditor that accedes to this Agreement before the Term Loan Early Consent Date and acquires further DFH Scheme Claims, DOV Scheme Claims or DRH Scheme Claims after acceding to this Agreement (whether before, on, or after the Term Loan Early Consent Date) shall be entitled to a pro rata share of the Term Loan Early Consent Fee or DRH Early Consent Fee, as applicable, with respect to such Claims so long as such Supporting Creditor has timely provided all Supporting Creditor Update Notices in accordance with Clause 3.4(e) as of the Record Date, and to the extent that the Claims have been acquired from another Supporting Creditor, the selling Supporting Creditor shall not be entitled to the Term Loan Early Consent Fee or DRH Early Consent Fee, as applicable, with respect to such Claims. |
(b) | Any Supporting Creditor that accedes to this Agreement after the Term Loan Early Consent Date but prior to the DRH Early Consent Date shall not be entitled to a pro rata share of the Term Loan Early Consent Fee under any circumstances, but if such Supporting Creditor acquires further DRH Scheme Claims after acceding to this Agreement (whether before, on, or after the DRH Early Consent Date) it shall be entitled to a pro rata share of the DRH Early Consent Fee with respect to such Claims so long as such Supporting Creditor has timely provided all Supporting Creditor Update Notices in accordance with Clause 3.4(e) as of the Record Date, and to the extent that any Claims have been acquired from another Supporting Creditor (including any DFH Scheme Claims and DOV Schemes), the |
selling Supporting Creditor shall not be entitled to the Term Loan Early Consent Fee or DRH Early Consent Fee, as applicable, with respect to such Claims.
1.8 | Schedule 4 (Form of Accession Letter) of the RSA to add "[purchaser under an open trade]" after "[beneficial]" in paragraph 3 thereof |
2. | CONDITIONS TO EFFECTIVENESS |
This Amendment shall become effective upon such time as it has been duly executed by the parties hereto on the date hereof
3. | REPRESENTATIONS AND WARRANTIES |
3.1 | The Supporting Creditors party hereto represent and warrant that they constitute the Majority Supporting Lenders as of the date hereof |
3.2 | Each party hereto hereby represents and warrants to each of the other parties hereto that the representations and warranties set forth in Clause 4 of the RSA are true and correct in all material respects on and as of the date hereof with the same effect as though made on and as of the date hereof |
4. | REFERENCE TO AND EFFECT ON THE RSA |
4.1 | This Amendment shall constitute a Restructuring Document for purposes of the RSA. Except as specifically amended by this Amendment, the RSA shall remain unchanged and unwaived and shall remain in full force and effect and are hereby ratified and confirmed. The amendment set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment or waiver of any right, power or remedy of any party hereto under, or an amendment or waiver of, consent to or modification of any other term or provision of the RSA or of any transaction or future action on the part of the parties hereto which would require the consent of any other party hereto under the RSA. |
5. | 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.
6. | APPLICABLE LAW |
This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any choice of law provisions which would require the application of the law of any other jurisdiction.
7. | COUNTERPARTS |
7.1 This Agreement may be executed in any number of counterparts and:
(a) each such counterpart shall be deemed to be an original;
(b) all such counterparts shall constitute one and the same document; and
(c) each Person executing a counterpart shall become a party hereto.
7.2 Transmission by fax or emailed scanned copy of an executed counterpart of this Waiver shall be deemed to constitute due and sufficient delivery of such counterpart.
Ocean Rig UDW Inc. as Parent | ||||
By: | /s/ Anthony Kandylidis | |||
Name: | ||||
Title: | ||||
(Signature Page to Waiver)
Elliott Associates, LP | ||||
By: | Elliott Capital Advisors, L.P., General Partner | |||
By: | Braxton Associates, Inc., General Partner | |||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Springfield Associates, LLC | ||||
By: | Elliott Associates, L.P., as managing member | |||
By: | Elliott Capital Advisors, L.P., as general partner | |||
By: | Braxton Associates, Inc., as general partner | |||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Elliott International, LP | ||||
By: | Elliott International Capital Advisors, Inc., as Attorney-in-Fact | |||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Kensington International Limited | ||||
By: | Elliott International Capital Advisors, Inc., as Attorney-in-Fact | |||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
Queensferry M LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry A LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry C LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry E LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry H LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
Upton A LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Upton C LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry Y LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Upton E LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Athena Investments Holdings LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
Upton I LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry B LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Upton B LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Upton D LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry N LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
Queensferry O LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry P LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry Q LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry S LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry U LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
Queensferry W LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry X LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Lovington Onshore LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Jesmond Holdings LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Bristol Partners LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
Queensferry F LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry G LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry I LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry J LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry L LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
GIM Holdings LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Clementine Ltd. | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Benjamin Capital Ltd. | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Columbia Point Limited | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Winter Valley Offshore LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
Queensferry D LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Upton F LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry R LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry V LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President | ||||
Queensferry Z LLC | ||||
By: | /s/ Elliot Greenberg | |||
Name: Elliot Greenberg | ||||
Title: Vice President |
BLUEMOUNTAIN GUADALUPE PEAK FUND L.P. | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
BLUEMOUNTAIN TIMBERLINE LTD. | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
BLUEMOUNTAIN KICKING HORSE FUND L.P. | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
BLUEMOUNTAIN LOGAN OPPORTUNITIES MASTER FUND L.P. | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
BLUEMOUNTAIN SUMMIT TRADING L.P. | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
BLUEMOUNTAIN FOINAVEN MASTER FUND L.P. | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P. | |||
By: BlueMountain Capital Management, LLC, its investment manager | |||
By: | /s/ David M. O'Mara | ||
Name: David M. O'Mara | |||
Title: Deputy General Counsel | |||
AVENUE COPPERS OPPORTUNITIES FUND, L.P. | |||
By: Avenue COPPERS Opportunities Fund GenPar, LLC, its General Partner | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE-ASRS EUROPE OPPORTUNITIES FUND, L.P. | |||
By: Avenue-ARS Europe Opportunities Fund GenPar, LLC, its General Partner | |||
By: GL ASRS Europe Partners, LLC, its Managing Member | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE ENERGY OPPORTUNITIES FUND, L.P. | |||
By: Avenue Energy Opportunities Partners, LLC, its General Partner | |||
By: GL Energy Opportunities Partners, LLC, its Managing Member | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE ENTRUST CUSTOMIZED PORTFOLIO SPC ON BEHALF AND FOR THE ACCOUNT OF AVENUE US/EUROPE DISTRESSED SEGREGATED PORTFOLIO | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE EUROPE OPPORTUNITIES MASTER FUND L.P. | |||
By: Avenue Europe Opportunities Fund GenPar, LLC, its General Partner | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (U.S.), L.P. | |||
By: Avenue Europe Capital Partners III, LLC, its General Partner | |||
By: GL Europe Partners III, LLC, its Managing Member | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE EUROPE SPECIAL SITUATIONS FUND III (EURO), L.P. | |||
By: Avenue Europe Capital Partners III, LLC, its General Partner | |||
By: GL Europe Partners III, LLC, its Managing Member | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE INVESTMENTS, L.P. | |||
By: Avenue Partners, LLC its General Partner | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member |
AVENUE PPF OPPORTUNITIES FUND, L.P. | |||
By: Avenue PPF Opportunities Fund GenPar, LLC, its General Partner | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
AVENUE SPECIAL OPPORTUNITIES FUND II, L.P. | |||
By: Avenue SO Capital Partners II, LLC, its General Partner | |||
By: GL SO Partners II, LLC, its Managing Member | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
MANAGED ACCOUNTS MASTER FUND SERVICES – MAP10 a Sub Trust of Managed Accounts Master Fund Services | |||
By: Avenue Capital Management II, L.P. its Investment Manager | |||
By: Avenue Capital Management II GenPar, LLC its General Partner | |||
By: | /s/ Sonia Gardner | ||
Name: Sonia Gardner | |||
Title: Member | |||
HATHOR CAPITAL LIMITED | ||||
By: | /s/ James Murphy | |||
Name: James Murphy | ||||
Title: Attorney-in-Fact | ||||
RICIMER CAPITAL LIMITED | ||||
By: | /s/ James Murphy | |||
Name: James Murphy | ||||
Title: Attorney-in-Fact | ||||
SILVER TEAL CAPITAL LIMITED | ||||
By: | /s/ James Murphy | |||
Name: James Murphy | ||||
Title: Attorney-in-Fact | ||||
CASTLE APRON CAPITAL LIMITED | ||||
By: | /s/ James Murphy | |||
Name: James Murphy | ||||
Title: Attorney-in-Fact | ||||
LION POINT MASTER L.P. | ||||
By: Lion Point Capital, LP, its investment manager | ||||
By: | /s/ James Murphy | |||
Name: James Murphy | ||||
Title: COO/CFO |