EXHIBIT 10.2


 


FIRST AMENDMENT TO EQUITY COMMITMENT AGREEMENT







This FIRST AMENDMENT TO EQUITY COMMITMENT AGREEMENT (this “Amendment”) is made and entered into as of May 27, 2014, by and among Genco Shipping & Trading Limited (“Genco”) and its undersigned subsidiaries (together with Genco, the “Company Parties”) and the undersigned Commitment Parties (collectively, the “Amending Creditors” and, together with the Company Parties, the “Amendment Parties”).







WHEREAS, reference is made to the Equity Commitment Agreement, dated as of April 16, 2014 (the “Existing ECA”) by and among the Company Parties and the Commitment Parties;







WHEREAS, the Company Parties and the Commitment Parties entered into the Existing ECA in connection with the Restructuring Support Agreement, effective as of April 3, 2014 (as such agreement may be amended, restated, supplemented or otherwise modified from time to time, the “Restructuring Support Agreement”);







WHEREAS, the Restructuring Support Agreement  and Existing ECA contemplate a Restructuring of the Company Parties to be implemented through a prepackaged chapter 11 plan consistent with the terms and conditions of the Restructuring Support Agreement and the Restructuring Term Sheet attached thereto (such chapter 11 plan of reorganization, the “Plan”);







WHEREAS, in accordance with the Restructuring Support Agreement and the Existing ECA, on April 21, 2014, each of the Company Parties filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (as amended, the “Bankruptcy Code”), in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”);







WHEREAS, on April 25, 2014, the Bankruptcy Court entered an Order in the Company Parties’ chapter 11 cases [Docket No. 47] approving the Company Parties’ assumption of the Restructuring Support Agreement pursuant to section 365(a) of the Bankruptcy Code; and







WHEREAS, on May 23, 2014, the Bankruptcy Court ordered a schedule for confirmation of the Plan (the “Confirmation Schedule”); and







WHEREAS, the Amending Creditors and the Company Parties wish to amend or restate the Existing ECA;







NOW, THEREFORE, in consideration of the mutual promises contained herein, along with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Amendment Parties hereby agree as follows:








		1.	Capitalized Terms.  Capitalized terms used but not defined in this Amendment have the meanings ascribed to such terms in the Existing ECA or Restructuring Support Agreement, as applicable.












		2.	Amendment.











		a.	The first Whereas clause of the Existing ECA is amended by adding the words “as amended, supplemented, or modified” before the defined term “Restructuring Support Agreement”.











		b.	Section 1.1 of the Existing ECA is amended by inserting the words “as may be amended in accordance with the terms thereof” after the words “Plan Solicitation Order” in the defined term “Rights Offering Procedures”.











		c.	Section 9.4 of the Existing ECA  is hereby amended by replacing the words “sixty (60)” with “eighty (80)”.











		3.	Amending Creditors’ Representations and Warranties. Each undersigned Amending Creditor, severally but not jointly, represents, warrants, and acknowledges as follows:











		a.	Authority and Validity.  (i) Such Amending Creditor has the power and authority to execute, deliver, and perform its obligations under this Amendment, and to consummate the transactions contemplated herein, (ii) the execution, delivery, and performance by such Amending Creditor under this Amendment and the consummation of the transactions contemplated herein have been duly authorized by all necessary action on the part of the Amending Creditor, and (iii) this Amendment has been duly executed and delivered by the Amending Creditor and constitutes the legal, valid, and binding agreement of such Amending Creditor and is enforceable against such Amending Creditor in accordance with its terms.











		b.	Title.  Such Amending Creditor is the legal or beneficial holder of, and has all necessary authority (including authority to bind any other legal or beneficial holder) with respect to the debt outstanding under the Debt Instruments in the aggregate principal amount set forth in Exhibit A (and in the case of a nominee, it has due and proper authorization to act on behalf of, and to bind, the beneficial owner of such Debt Instruments), and that its interests in such Debt Instruments are free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction, right of first refusal, or other limitation on disposition or encumbrances of any kind that would adversely affect in any way such Amending Creditor’s performance of its obligations contained in the Existing ECA and this Amendment at the time such obligations are required to be performed; and











		c.	Commitment Party.  Such Amending Creditor is a Commitment Party to the Existing ECA (whether as an original signatory thereto or by subsequent execution and delivery of a writing in accordance with section 2.6(b) or 2.6(c) of the Existing ECA).











		4.	Company Parties’ Representations and Warranties.  Each of the Company Parties hereby represents, warrants, and acknowledges that (i) it has the power and authority to execute,






2







deliver, and perform its obligations under this Amendment, and to consummate the transactions contemplated herein, (ii) the execution, delivery, and performance by the Company Parties under this Amendment and the consummation of the transactions contemplated herein have been duly authorized by all necessary action on the part of the applicable Company Parties, and (iii) this Amendment has been duly executed and delivered by the applicable Company Parties and constitutes the legal, valid, and binding agreement of such Company Parties and is enforceable against the Company Parties in accordance with its terms.








		5.	Governing Law.  THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISION WHICH WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.











		6.	Amendment Effectiveness.  The amendment of the Existing ECA pursuant to this Amendment shall become effective as to each of the Company Parties and each of the Commitment Parties as of the date on which all of the Commitment Parties shall have executed and delivered to the Company a counterpart signature page hereto, provided, that such execution and delivery occurs no later than 11:59 p.m., New York City time, on May 28, 2014 (the “Amendment Deadline”).  In the event that, at or prior to the Amendment Deadline, less than all of the Commitment Parties shall have executed and delivered to the Company counterpart signature pages hereto, then automatically and without the need for any notice or other action by any Person, upon the Amendment Deadline:  (a) the Existing ECA shall be terminated pursuant to Section 9.1(a) of the Existing ECA, and (b) the Company Parties and each of the Amending Creditors shall be deemed to have entered into a new Equity Commitment Agreement, dated as of the first calendar day after the Amendment Deadline, which new Equity Commitment Agreement shall be identical in all respects to the Existing ECA, except with the amendments set forth above and with Schedule 2 and Schedule 3 revised to only reflect the holdings and equity commitment percentages of the Amending Creditors, and shall be binding on each of the Company Parties and the Amending Creditors as if each of the Company Parties and the Amending Creditors had executed and delivered a counterpart signature page thereto.











		7.	Counterparts.  This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement.  The signatures of all of the Amending Parties need not appear on the same counterpart. Delivery of an executed signature page of this Amendment by facsimile or electronic mail shall be effective as delivery of a manually executed signature page of this Amendment.











		8.	No Waiver.  The execution, delivery and effectiveness hereof shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Parties under the Existing ECA.





 


[Signature Pages Follow]



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IN WITNESS WHEREOF, the Amending Parties have caused this FIRST AMENDMENT TO EQUITY COMMITMENT AGREEMENT to be duly executed as of the date above written.


 


GENCO SHIPPING & TRADING LIMITED



 


	
By:

	/s/ John C. Wobensmith	
		
Name: John C. Wobensmith

	
	
       

	
Title: Chief Financial Officer

	





 



	
GENCO ACHERON LIMITED

	
GENCO CHARGER LIMITED


	
GENCO BEAUTY LIMITED

	
GENCO HUNTER LIMITED


	
GENCO KNIGHT LIMITED

	
GENCO PREDATOR LIMITED


	
GENCO LEADER LIMITED

	
GENCO WARRIOR LIMITED


	
GENCO MUSE LIMITED

	
GENCO BAY LIMITED


	
GENCO VIGOUR LIMITED

	
GENCO OCEAN LIMITED


	
GENCO CARRIER LIMITED

	
GENCO AVRA LIMITED


	
GENCO PROSPERITY LIMITED

	
GENCO MARE LIMITED


	
GENCO SUCCESS LIMITED

	
GENCO SPIRIT LIMITED


	
GENCO WISDOM LIMITED

	
GENCO LORRAINE LIMITED


	
GENCO MARINE LIMITED

	
GENCO PYRENEES LIMITED


	
GENCO EXPLORER LIMITED

	
GENCO LOIRE LIMITED


	
GENCO PIONEER LIMITED

	
GENCO CLAUDIUS LIMITED


	
GENCO PROGRESS LIMITED

	
GENCO BOURGOGNE LIMITED


	
GENCO RELIANCE LIMITED

	
GENCO PICARDY LIMITED


	
GENCO SURPRISE LIMITED

	
GENCO AQUITAINE LIMITED


	
GENCO SUGAR LIMITED

	
GENCO NORMANDY LIMITED


	
GENCO AUGUSTUS LIMITED

	
GENCO AUVERGNE LIMITED


	
GENCO TIBERIUS LIMITED

	
GENCO PROVENCE LIMITED


	
GENCO LONDON LIMITED

	
GENCO ARDENNES LIMITED


	
GENCO TITUS LIMITED

	
GENCO BRITTANY LIMITED


	
GENCO CONSTANTINE LIMITED

	
GENCO LANGUEDOC LIMITED


	
GENCO HADRIAN LIMITED

	
GENCO RHONE LIMITED


	
GENCO COMMODUS LIMITED

	
GENCO INVESTMENTS LLC


	
GENCO MAXIMUS LIMITED

	
GENCO MANAGEMENT (USA) LLC


	
GENCO CLAUDIUS LIMITED

	
GENCO SHIP MANAGEMENT LLC


	
GENCO CHALLENGER LIMITED

	
GENCO RE INVESTMENTS LLC


	
GENCO CHAMPION LIMITED

	
 







 



	
By:

	/s/ John C. Wobensmith	
		
Name: John C. Wobensmith

	
	
       

	
Title: Chief Financial Officer

	





 


[Signature Page to First Amendment to Equity Commitment Agreement]













GENCO CAVALIER LLC


GENCO RAPTOR LLC


GENCO THUNDER LLC


 



	
By:

	/s/ John C. Wobensmith	
		
Name: John C. Wobensmith

	
	
       

	
Title: Manager

	






 


[Signature Page to First Amendment to Equity Commitment Agreement]











Alden Global Capital LLC


 


 



	By:	/s/ Beth Pierce                     

Name:  Beth Pierce

 Title:  Vice President





 



[Signature Page to First Amendment to Equity Commitment Agreement]










APOLLO SPECIAL OPPORTUNITIES MANAGED

 ACCOUNT, L.P.







BY: APOLLO SOMA ADVISORS, L.P., its general

 partner







BY: APOLLO SOMA CAPITAL MANAGEMENT, LLC,

 its general partner


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Secretary










AES (LUX) S.A R.L.


 


BY: APOLLO EUROPEAN STRATEGIC

 MANAGEMENT, L.P., its investment manager







BY: APOLLO EUROPEAN STRATEGIC

 MANAGEMENT GP, LLC, its general partner


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Assistant Secretary










AEC (LUX) S.A R.L.







BY: APOLLO EUROPEAN CREDIT MANAGEMENT,

 L.P., its investment manager







BY: APOLLO EUROPEAN CREDIT MANAGEMENT

 GP, LLC, its general partner


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Assistant Secretary





 



[Signature Page to First Amendment to Equity Commitment Agreement]










APOLLO CENTRE STREET PARTNERSHIP, L.P.


 


BY: APOLLO CENTRE STREET MANAGEMENT, LLC,

 its investment manager


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Assistant Secretary










ANS U.S. HOLDINGS LTD


 


BY: APOLLO SK STRATEGIC ADVISORS, LLC, its

 sole director


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Assistant Secretary





 


APOLLO CREDIT OPPORTUNITY FUND III LP


 


BY: APOLLO CREDIT OPPORTUNITY ADVISORS III

 LP, its general partner







BY: APOLLO CREDIT OPPORTUNITY ADVISORS III

 GP LLC, its general partner


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Secretary





 



[Signature Page to First Amendment to Equity Commitment Agreement]










APOLLO FRANKLIN PARTNERSHIP, L.P.


 


BY: APOLLO FRANKLIN ADVISORS (APO DC), L.P.,

 its general partner







BY: APOLLO FRANKLIN ADVISORS (APO DC-GP),

 LLC, its general partner


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Secretary










APOLLO ZEUS STRATEGIC INVESTMENTS, L.P.


 


BY: APOLLO ZEUS STRATEGIC MANAGEMENT,

 LLC, its investment manager


 



	By:	/s/ Joseph D. Glatt                     

Name:  Joseph D. Glatt

 Title:  Vice President and Secretary





 



[Signature Page to First Amendment to Equity Commitment Agreement]










Bank of America, N.A.


 


 



	By:	/s/ Jonathan M. Barnes                     

Name:  Jonathan M. Barnes

 Title:  Vice President





 



[Signature Page to First Amendment to Equity Commitment Agreement]










Centerbridge Capital Partners II (Cayman), L.P.


 


Centerbridge Capital Partners SBS II (Cayman), L.P.


 


Centerbridge Special Credit Partners II AIV IV (Cayman), L.P.


 


Centerbridge Credit Partners, LP


 


Centerbridge Credit Partners Master, LP













	By:	/s/ Bao Truong                     

Name:  Bao Truong

 Title:  Senior Managing Director





 



[Signature Page to First Amendment to Equity Commitment Agreement]










CITIGROUP GLOBAL MARKETS INC.













	By:	/s/ Linda R. Gianna Hasio                     

Name:  Linda R. Gianna Hasio

 Title:  Director





 



[Signature Page to First Amendment to Equity Commitment Agreement]










CITIGROUP FINANCIAL PRODUCTS INC.













	By:	/s/ Michael Eliason                     

Name:  Michael Eliason

 Title:  Authorized Signatory





 



[Signature Page to First Amendment to Equity Commitment Agreement]















CITIBANK N.A.













	By:	/s/ Michael Eliason                     

Name:  Michael Eliason

 Title:  Attorney-In-Fact





 



[Signature Page to First Amendment to Equity Commitment Agreement]















Credit Value Partners, LP, for funds and accounts

 under management













	By:	/s/ Donald Pollard                     

Name:  Donald Pollard

 Title:  Authorized Signatory





 



[Signature Page to First Amendment to Equity Commitment Agreement]










Gracie Credit Opportunities Master Fund, LP


 


By:  P&S Credit Management, LP













	By:	/s/ Sam Konz                     

Name:  Sam Konz

 Title:  CFO





 



[Signature Page to First Amendment to Equity Commitment Agreement]










P Gracie, Ltd


 


By:  P&S Credit Management LP













	By:	/s/ Sam Konz                     

Name:  Sam Konz

 Title:  CFO





 



[Signature Page to First Amendment to Equity Commitment Agreement]















Midtown Acquisitions LP













	By:	/s/ Avram Z. Friedman                     

Name:  Avram Z. Friedman

 Title:  Manager





 



[Signature Page to First Amendment to Equity Commitment Agreement]










Merrill Lynch Pierce Fenner & Smith, Inc.













	By:	/s/ Jonathan M. Barnes                     

Name:  Jonathan M. Barnes

 Title:  Vice President





 



[Signature Page to First Amendment to Equity Commitment Agreement]















Onex Debt Opportunity Fund, Ltd.


 


By: Onex Credit Partners, LLC, its investment manager


 








	By:	/s/ Kevin Connors                     

Name:  Kevin Connors

 Title:  Portfolio Manager





 



[Signature Page to First Amendment to Equity Commitment Agreement]










OCP Investment Trust


 


By: Onex Credit Partners, LLC, its manager


 



		By:	/s/ Kevin Connors                     

Name:  Kevin Connors

 Title:  Portfolio Manager





 



[Signature Page to First Amendment to Equity Commitment Agreement]










PANNING MASTER FUND, LP


By: Panning Capital Management, LP as investment manager













	By:	/s/ William Kelly                     

Name:  William Kelly

 Title:  COO





 



[Signature Page to First Amendment to Equity Commitment Agreement]










SILVER POINT CAPITAL OFFSHORE MASTER FUND, L.P.







 



	By:	/s/ Michael A. Gatto                     

Name:  Michael A. Gatto

 Title:  Authorized Signatory





 



[Signature Page to First Amendment to Equity Commitment Agreement]










SILVER POINT CAPITAL FUND, L.P.







 



	By:	/s/ Michael A. Gatto                     

Name:  Michael A. Gatto

 Title:  Authorized Signatory





 



[Signature Page to First Amendment to Equity Commitment Agreement]










SPCP GROUP, LLC,







 



	By:	/s/ Michael A. Gatto                     

Name:  Michael A. Gatto

 Title:  Authorized Signatory





 



[Signature Page to First Amendment to Equity Commitment Agreement]










Permal Stone Lion Fund Ltd.







By:      Stone Lion Capital Partners LP,


Investment Manager







 



	By:	/s/ Claudia Borg                     

Name:  Claudia Borg

 Title:  Authorized Signatory





 



[Signature Page to First Amendment to Equity Commitment Agreement]










Stone Lion Portfolio L.P.


By: Stone Lion Capital Partners L.P,


Its Investment Manager







 



	By:	/s/ Claudia Borg                     

Name:  Claudia Borg

 Title:  General Counsel





 



[Signature Page to First Amendment to Equity Commitment Agreement]










STRATEGIC VALUE MASTER FUND, LTD.







By:  Strategic Value Partners, LLC, its Investment Manager













	By:	/s/ Lewis Schwartz                     

Name:  Lewis Schwartz

 Title:  Chief Financial Officer





 



[Signature Page to First Amendment to Equity Commitment Agreement]










STRATEGIC VALUE SPECIAL SITUATIONS MASTER FUND II, L.P.







By:  SVP Special Situations II LLC, its Investment Manager







 



	By:	/s/ Lewis Schwartz                     

Name:  Lewis Schwartz

 Title:  Chief Financial Officer





 



[Signature Page to First Amendment to Equity Commitment Agreement]










STRATEGIC VALUE SPECIAL SITUATIONS MASTER FUND III, L.P.







By:  SVP Special Situations III LLC, its Investment Manager







 



	By:	/s/ Lewis Schwartz                     

Name:  Lewis Schwartz

 Title:  Chief Financial Officer





 



[Signature Page to First Amendment to Equity Commitment Agreement]










STRATEGIC VALUE SPECIAL SITUATIONS OFFSHORE FUND III-A, L.P.







By: SVP Special Situations III-A LLC, its Investment Manager




  



	By:	/s/ Lewis Schwartz                     

Name:  Lewis Schwartz

 Title:  Chief Financial Officer





 



[Signature Page to First Amendment to Equity Commitment Agreement]










MAP 139 SEGREGATED PORTFOLIO OF LMA SPC


By:            Vendor Capital Management LP


Its:            Investment Adviser







 



	By:	/s/ Michael J. Wartell                     

Name:  Michael J. Wartell

 Title:  Co-Chief Investment Officer





 



[Signature Page to First Amendment to Equity Commitment Agreement]










VENDOR CAPITAL MASTER FUND LTD


By:            Vendor Capital Management LP


Its:            Investment Manager


 








	By:	/s/ Michael J. Wartell                     

Name:  Michael J. Wartell

 Title:  Co-Chief Investment Officer





 



[Signature Page to First Amendment to Equity Commitment Agreement]















ADVANTAGE OPPORTUNITIES FUND, L.P.


 


 



	By:	/s/ Irvin Schlussel                     





Name:             Irvin Schlussel


Title:                Managing Partner


 



[Signature Page to First Amendment to Equity Commitment Agreement]










FIDELITY ADVISOR SERIES I FUND; FIDELITY ADVISOR LEVERAGED

 COMPANY STOCK FUND


 


 



	By:	/s/ Joseph Zambello                     





Name:             Joseph Zambello


Title:                Deputy Treasurer


 



[Signature Page to First Amendment to Equity Commitment Agreement]










FIDELITY SECURITIES FUND; FIDELITY LEVERAGED COMPANY STOCK FUND


 


 



	By:	/s/ Joseph Zambello                     





Name:             Joseph Zambello


Title:                Deputy Treasurer


 



[Signature Page to First Amendment to Equity Commitment Agreement]















NEW GENERATION ADVISORS, LLC


 


 



	By:	/s/ Johan D. Goedkoop                     





Name:              Johan D. Goedkoop


Title:                Vice President


 



[Signature Page to First Amendment to Equity Commitment Agreement]















JLP CREDIT OPPORTUNITY MASTER FUND LTD.


 


By:            Phoenix Investment Adviser, LLC, its Investment Manager


 


 



	By:	/s/   Jeff Peskind                     





Name:             Jeff Peskind


Title:                CIO


 



[Signature Page to First Amendment to Equity Commitment Agreement]















JLP STRESSED CREDIT FUND LP


 


By:            Phoenix Investment Adviser, LLC, its Investment Manager


 


 



	By:	/s/  Jeff Peskind                     





Name:             Jeff Peskind


Title:                CIO


 



[Signature Page to First Amendment to Equity Commitment Agreement]















WILFRID ADVISORS AG


 


 



	By:	/s/ Nicholas W. Walsh                     





Name:             Nicholas W. Walsh


Title:                President







[Signature Page to First Amendment to Equity Commitment Agreement]