d1470172_ex10-1.htm




 


 


Exhibit 10.1


 


EXECUTION COPY


 


AMENDMENT NO. 1 TO WAIVER AND FORBEARANCE AGREEMENT


 


This AMENDMENT NO. 1 TO WAIVER AND FORBEARANCE AGREEMENT, dated as of April 15, 2014 (the "Amendment"), is made and entered into by and among (i) Eagle Bulk Shipping Inc. (the "Borrower") and its subsidiaries (collectively, the "Guarantors", and together with the Borrower, the "Loan Parties") and (ii) certain lenders under the Credit Agreement (collectively, the "Lenders").  The Loan Parties and the Lenders party hereto are hereinafter referred to collectively as the "Parties."


 


RECITALS


 


WHEREAS, the Loan Parties and Lenders constituting the "Majority Lenders," as that term is defined in the Credit Agreement, entered into that certain Waiver and Forbearance Agreement dated as of March 19, 2014 (as amended to date and as may be further amended, the "Waiver and Forbearance Agreement").


 


WHEREAS, on or about April 1, 2014, the Loan Parties disclosed that they had failed to meet the maximum leverage ratio covenant in the Credit Agreement as of December 31, 2013, which covenant was one of the "Acknowledged Potential Defaults" as defined in the Waiver and Forbearance Agreement.


 


WHEREAS, the Lenders party hereto collectively hold more than 66-2/3% of the revolving and term loans outstanding under the Credit Agreement as of the date hereof and constitute the "Majority Lenders" as that term is defined in the Credit Agreement.


 


WHEREAS, the Borrower has requested that the Lenders amend the Waiver and Forbearance Agreement in certain respects and, subject to the terms and conditions hereof, the Lenders party hereto are willing to agree to such request, but only upon the terms and conditions set forth herein.


 


AGREEMENT







NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:


 


1.           Terms.  Capitalized terms used herein, but not otherwise defined, shall have the meanings given to them in the Waiver and Forbearance Agreement or the Credit Agreement, as applicable.


 


2.           Amendment to Waiver and Forbearance Agreement.  The Waiver and Forbearance Agreement is hereby amended as follows:


 


(a)           The reference to "April 15, 2014" appearing in Section 2(a)(i) of the Waiver and Forbearance Agreement is hereby deleted, and replaced with "April 30, 2014".


 










  





  











  













(b)           The phrase "conditions or agreements" appearing in Section 2(a)(ii) of the Waiver and Forbearance Agreement is hereby amended by adding the phrase ", representations, warranties" after the word "conditions."


 


(c)           Section 4(f) of the Waiver and Forbearance Agreement is hereby replaced in its entirety with the following:  "The Loan Parties shall pay the fees and expenses incurred by Paul, Weiss, Rifkind, Wharton & Garrison LLP, Houlihan Lokey Capital, Inc., and English and maritime counsel, as advisors to the Lenders, in accordance with the terms of their respective engagement letters."


 


3.           Additional Agreements.


 


(a)           Further to and by way of supplement to the covenant and agreement of the Loan Parties set forth in Section 4(a) of the Waiver and Forbearance Agreement, the Loan Parties shall deliver to Paul, Weiss, Rifkind, Wharton & Garrison LLP the documents and comments requested, or otherwise reasonably satisfy, the requirements set forth on Schedule 1 hereto.


 


(b)           Each of the Loan Parties hereby agrees to take, at its own expense, promptly, whatever commercially reasonable action is necessary or desirable or may be requested by the Security Trustee for perfecting and maintaining perfection (including facilitating perfection by possession, as appropriate) and the priority of, a security interest in (i) the respective right, title and interest of each of Borrower and Eagle Shipping International (USA) LLC ("Eagle International") in the equity interests that the Borrower and Eagle International, respectively, hold in the Subsidiaries listed on Schedule 2 hereto, and (ii) those certain equity interests in Korea Lines Corporation received by certain Loan Parties (the "KLC Shares"), and the proceeds and products of, and accessions to, all of the foregoing equity interests.


 


(c)           Schedule 17 of the Credit Agreement is hereby amended to include each of the accounts set forth on Schedule 3 hereto.


 


4.           Agreements and Acknowledgements.  Each Loan Party hereby agrees, confirms and acknowledges as follows:


 


(a)           As of the Amendment Effective Date (as defined below), the Borrower is indebted to the Lenders in an aggregate amount of $1,202,612,561, comprised of (i) $20,000,000 in Revolving Loan Commitments and $0 in Revolving Loans outstanding, (ii) $1,129,478,742 in Term Loan Commitments and $1,129,478,742 in Term Loans outstanding, and (iii) $53,133,819 of PIK Loans, plus accrued but unpaid interest, plus the costs and expenses incurred by the Agent and the Lenders and payable under the Finance Documents.


 


(b)           As of the Amendment Effective Date, each Loan Party continues to be in compliance with all of the terms and provisions set forth in the Waiver and Forbearance Agreement (as amended by this Amendment).


 


(c)           As of the Amendment Effective Date, the representations and warranties set forth in the recitals hereto and in the Waiver and Forbearance Agreement are true and correct with the same effect as though such representations and warranties had been made on the date hereof.


 










  





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(d)           The Waiver and Forbearance Agreement (as amended by this Amendment) has been duly executed and delivered on each Loan Party's behalf by a duly authorized officer, and constitutes each Loan Party's legal, valid and binding obligation enforceable in accordance with its terms.


 


5.           Effect of Waiver and Forbearance Agreement.  Except as specifically amended hereby, the terms and provisions of the Waiver and Forbearance Agreement are in all other respects ratified and confirmed and remain in full force and effect without modification or limitation.  This Amendment is not intended to be, nor shall it be construed to create, a novation, a waiver or accord and satisfaction of the Waiver and Forbearance Agreement or any obligations thereunder.  No reference to this Amendment need be made in any notice, writing or other communication relating to the Waiver and Forbearance Agreement, and any such reference to the Waiver and Forbearance Agreement is deemed a reference thereto as amended by this Amendment.


 


6.           Condition Precedent to Amendment Effective Date.  This Amendment shall not become effective unless and until each of the following occurs (the date on which each of the following occurs, the "Amendment Effective Date"):


 


(a)           The Amendment is duly executed by the Parties, including Lenders constituting the "Majority Lenders" under the Credit Agreement.


 


(b)           The Loan Parties pay any outstanding fees and expenses incurred by Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Houlihan Lokey Capital, Inc., as advisors to the Lenders, in accordance with the terms of their respective engagement letters, that were invoiced to the Borrower on or before April 11, 2014.


 


7.           Release.


 


In consideration of the agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Loan Party, on behalf of itself and its successors and assigns, and its present and former members, affiliates, employees, agents, officers, directors, shareholders, legal representatives and other representatives (each, a "Releasing Party" and collectively, the "Releasing Parties"), does hereby remise, release and discharge, and shall be deemed to have forever remised, released and discharged each of the Lenders, and each Lender's respective successors and assigns, and past, present and future officers, directors, affiliates, shareholders, trustees, agents, employees, consultants, experts, advisors, attorneys and other professionals and all other persons and entities to whom any of the foregoing would be liable if such persons or entities were found to be liable to any Releasing Party, or any of them (collectively hereinafter the "Released Parties"), of and from any and all manner of action and actions, cause and causes of action, claims, demands, suits, damages and any and all other claims, counterclaims, defenses, rights of setoff, demands and liabilities whatsoever (each, a "Claim" and collectively, the "Claims") of every kind and nature, whether in law, equity or otherwise, known or unknown, fixed or contingent, joint and/or


 










  





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several, secured or unsecured, liquidated or unliquidated, suspected or unsuspected, which any Releasing Party may now or hereafter own, hold, have or claims to have against the Released Parties, in their capacities as such under the Credit Agreement or other Finance Documents, for, upon, or by reason of any circumstance, action, fact, event or omission or other matter occurring at or from any time prior to and including the Amendment Effective Date in any way arising out of, connected with or relating to this Amendment, the Waiver and Forbearance Agreement, the Credit Agreement, any other Finance Document and the transactions contemplated thereby or hereunder; provided, however, that no Released Party shall be released from any act or omission that constitutes gross negligence, fraud or wilful misconduct.


 


8.           Governing Law; Jurisdiction; Waiver of Jury Trial.  This Amendment shall be governed by and construed in accordance with the law of the State of New York, without reference to the conflicts or choice of law provisions thereof.  Each of the Parties hereby consents and agrees that the jurisdiction provisions of the Credit Agreement shall govern any action, claim or other proceeding in respect of this Amendment or any matters arising out of or related thereto.  Each of the Parties hereby waives its respective rights to a jury trial with respect to any action, claim or other proceeding arising out of any dispute in connection with this Amendment, any rights or obligations hereunder, or the performance of such rights and obligations.


 


9.           Counterparts.  This Amendment may be executed by one or more of the Parties on any number of separate counterparts (including by electronic transmission of signature pages hereto), and all of such counterparts taken together shall be deemed an original and to constitute one and the same instrument.


 


10.         Reference to Waiver and Forbearance Agreement. All references to the "Waiver and Forbearance Agreement", "hereunder", "hereof" or words of like import in the Waiver and Forbearance Agreement shall mean and be a reference to the Waiver and Forbearance Agreement as modified hereby and as may in the future be amended, restated, supplemented or modified from time to time.


 


11.         No Other Amendment; Reservation of Rights; No Waiver; Finance Document.  This Amendment shall be part of the Waiver and Forbearance Agreement and shall constitute a Finance Document as that term is defined in the Credit Agreement.  Other than as otherwise expressly provided herein and in the Waiver and Forbearance Agreement, this Amendment shall not be deemed to operate as an amendment or waiver of, or to prejudice, any right, power, privilege, or remedy of the Lenders under this Amendment, the Forbearance Agreement, the Credit Agreement, any other Finance Document, or applicable law, nor shall entering into this Amendment preclude the Lenders from refusing to enter into any further amendments, waivers or forbearances with respect to the Credit Agreement.


 


 







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IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.


 




	  	
BORROWER


 


Eagle Bulk Shipping Inc.


 


 


By:  /s/ Adir Katzav


Name: Adir Katzav


Title:   Chief Financial Officer


 


 


GUARANTORS


 


Agali Shipping S.A.


Anemi Maritime Services S.A.


Avocet Shipping LLC


Bittern Shipping LLC


Canary Shipping LLC


Cardinal Shipping LLC


Condor Shipping LLC


Crane Shipping LLC


Crested Eagle Shipping LLC


Crowned Eagle Shipping LLC


Eagle Bulk (Delaware) LLC


Eagle Bulk Pte. Ltd.


Eagle Management Consultancy Pte. Ltd.


Eagle Management Consultants LLC


Eagle Ship Management LLC


Eagle Shipping International (USA) LLC


Egret Shipping LLC


Falcon Shipping LLC


Gannet Shipping LLC


Golden Eagle Shipping LLC


Goldeneye Shipping LLC


Grebe Shipping LLC


Griffon Shipping LLC


Harrier Shipping LLC


Hawk Shipping LLC


Heron Shipping LLC


Ibis Shipping LLC


Imperial Eagle Shipping LLC


Jaeger Shipping LLC


Jay Shipping LLC


Kampia Shipping S.A.


Kestrel Shipping LLC


Kingfisher Shipping LLC


Kite Shipping LLC


Kittiwake Shipping LLC


Marmaro Shipping S.A.


 










 



 


 



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Martin Shipping LLC


Merlin Shipping LLC


Mesta Shipping S.A.


Mylos Shipping S.A.


Nagos Shipping S.A.


Nighthawk Shipping LLC


Oriole Shipping LLC


Osprey Shipping LLC


Owl Shipping LLC


Peregrine Shipping LLC


Petrel Shipping LLC


Puffin Shipping LLC


Rahi Shipping S.A.


Redwing Shipping LLC


Roadrunner Shipping LLC


Sandpiper Shipping LLC


Shrike Shipping LLC


Sirikari Shipping S.A.


Skua Shipping LLC


Sparrow Shipping LLC


Spilia Shipping S.A.


Stellar Eagle Shipping LLC


Tern Shipping LLC


Thrasher Shipping LLC


Thrush Shipping LLC


Woodstar Shipping LLC


Wren Shipping LLC


 


By:  /s/ Adir Katzav 

Name: Adir Katzav


Title:   Chief Financial Officer


 











 









 






















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LENDERS:


 


BANK OF AMERICA, N.A.


 


 


By:  /s/ Jonathan M. Barnes


Name:  Jonathan M. Barnes


Title:    Vice President


 



























 


 




 

































































































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LENDER:


 


Brigade Capital Management


 


 


By:  /s/ Aaron Daniels


Name:  Aaron Daniels


Title:    Associate General Counsel


 



























 


 




 

































































































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LENDER:


 


Canyon Capital Advisors LLC, on behalf


of its participating funds and managed


accounts


 


 


By:  /s/ Jonathan M. Kaplan


Name:  Jonathan M. Kaplan


Title:    Authorized Signatory


 



























 


 




 

































































































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LENDER:


 


Goldman Sachs


 


 


By:  /s/ Thomas A. Tormey


Name:  Thomas A. Tormey


Title:    Managing Director


 



























 


 




 

































































































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LENDER:


 


MERRILL LYNCH CREDIT PRODUCTS, LLC


 


 


By:  /s/ Jonathan M. Barnes


Name:  Jonathan M. Barnes


Title:    Vice President


 



























 


 




 

































































































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LENDER:


 


Midtown Acquisitions L.P.


 


By:  Midtown Acquisitions GP LLC, its


general partner


 


 


By:  /s/ Anthony A. Yoseloff


Name:  Anthony A. Yoseloff


Title:    Manager


 



























 


 




 

































































































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LENDER:


 


Onex Debt Opportunity Fund, Ltd.


 


By:  Onex Credit Partners, LLC, its


investment manager


 


 


By:  /s/ Steven Gutman


Name:  Steven Gutman


Title:    General Counsel


 



























 


 




 

































































































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LENDER:


 


OCP Investment Trust


 


By:  Onex Credit Partners, LLC, its manager


 


 


By:  /s/ Steven Gutman


Name:  Steven Gutman


Title:    General Counsel


 



























 


 




 

































































































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LENDER:


 


Panning Capital Management LP


 


 


 


By:  /s/ William M. Kelly


Name:  William M. Kelly


Title:    Chief Operating Officer


 



























 


 




 

































































































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LENDER:






 




	 	 	 
	Oaktree Value Opportunities Fund, L.P.	 	Oaktree Huntington Invesment Fund, L.P.
	 	 	 	 	 
	By: 	
Oaktree Value Opportunities Fund GP, L.P.

	 	By: 	Oaktree Huntington Investment Fund GP, L.P.
	Its: 	General Partner 	 	Its:	General Partner
	 	 	 	 	 
	By: 	Oaktree Value Opportunities Fund GP Ltd. 	 	By:	Oaktree Huntington Investment Fund GP Ltd.
	Its: 	General Partner	 	Its:	General Partner
	 	 	 	 	 
	By: 	Oaktree Capital Management, L.P. 	 	By: 	Oaktree Capital Management, L.P. 
	Its: 	Director 	 	Its:	Director
	 	 	 	 	 
	By:	/s/Emily Stephens      	 	By: 	/s/Emily Stephens      
	Name: 	Emily Stephens 	 	Name:	Emily Stephens
	Title: 	Managing Director 	 	Title:	Managing Director
	 	 	 	 	 
	By: 	/s/Mahesh Balakrishnan   	 	By:	/s/Mahash Balakrishnan   
	Name: 	Mahesh Balakrishnan 	 	Name:	Mahash Balakrishnan
	Title: 	Senior Vice President 	 	Title:	Senior Vice President
	 	 	 	 	 
	 	 	 	 	 
	OakTree Opportunities Fund VIIIb Delaware, L.P.	 	Oaktree Opps 9 HoldCo Ltd.
	 	 	 	Oaktree Opps IX (Parallel 2) HoldCo Ltd.
	By: 	Oaktree Fund GP, LLC	 	Oaktree VOF (Cayman) 1 CTB Ltd.
	Its:	General Partner	 	Oaktree Huntington (Cayman) 5 CTB Ltd.
	 	 	 	Oaktree Opps VIII (Cayman) 3 CTB Ltd.
	 	 	 	Oaktree Opps IX Parallel (Cayman) 1 CTB Ltd.
	By:	Oaktree Fund GP I, L.P. 	 	Oaktree Opps IX (Cayman) 1 CTB Ltd.
	Its:	Managing Member 	 	Oaktree Opps IX Parallel 2 (Cayman) 1 CTB Ltd.
	 	 	 	 	 
	By:	/s/Emily Stephens      	 	By: 	Oaktree Capital Management, L.P.
	Name:	Emily Stephens 	 	Their:	Director 
	Title:	Authoried Signatory 	 	 	 
	 	 	 	By: 	/s/Emily Stephens      
	By:	/s/Mahesh Balakrishnan   	 	Name: 	Emily Stephens 
	Name:	Mahesh Balakrishnan 	 	Title: 	Managing Director 
	Title:	Senior Vice President 	 	 	 
	 	 	 	By: 	/s/Mahesh Balakrishnan
	 	 	 	Name:	Mahesh Balakrishnan
	 	 	 	Title:	Senior Vice President
	 	 	 	 	 



















 




  





  











  






 






 












Schedule 1







All documentation previously requested by Paul, Weiss and maritime counsel in connection with the Agency Transfer.


 


 


 


 


 


 


 


 


 


 


 


 


 




 










  





  











  













Schedule 2












 


Pledgor: Eagle Bulk Shipping Inc.


 



	
  

	
1.

	
Anemi Maritime Services S.A.







 



	
  

	
2.

	
Agali Shipping S.A.







 



	
  

	
3.

	
Eagle Bulk Pte. Ltd.







 



	
  

	
4.

	
Eagle Bulk (Delaware) LLC







 



	
  

	
5.

	
Eagle Shipping International (USA) LLC







 



	
  

	
6.

	
Griffon Shipping LLC







 



	
  

	
7.

	
Heron Shipping LLC







 



	
  

	
8.

	
Kampia Shipping S.A.







 



	
  

	
9.

	
Marmaro Shipping S.A.







 



	
  

	
10.

	
Mesta Shipping S.A.







 



	
  

	
11.

	
Mylos Shipping S.A.







 



	
  

	
12.

	
Nagos Shipping S.A.







 



	
  

	
13.

	
Rahi Shipping S.A.







 



	
  

	
14.

	
Sirikari Shipping S.A.







 



	
  

	
15.

	
Spilia Shipping S.A.







 


 


Pledgor: Eagle Shipping International (USA) LLC


 



	
  

	
1.

	
Eagle Management Consultancy Pte. Ltd.







 



	
  

	
2.

	
Eagle Management Consultants LLC







 



	
  

	
3.

	
Eagle Ship Management LLC