AMENDMENT NO. 5 TO WAIVER AND FORBEARANCE AGREEMENT
Exhibit 10.1
AMENDMENT NO. 5 TO WAIVER AND FORBEARANCE AGREEMENT
This AMENDMENT NO. 5 TO WAIVER AND FORBEARANCE AGREEMENT, dated as of June 5, 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 March 31, 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 Loan Parties and Lenders constituting the “Majority Lenders,” as that term is defined in the Credit Agreement, have since entered into certain amendments to the Waiver and Forbearance Agreement (the “Prior Amendments”).
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, certain of the Lenders party hereto are holders of warrants (the “Warrant Holders”) to purchase common stock of the Borrower (the “Warrants”) issued under that certain Warrant Agreement, dated as of June 20, 2012, between the Borrower and the other parties thereto (the “Warrant Agreement”).
WHEREAS, the Warrant Holders party hereto constitute, as of the date hereof, the “Majority Holders” as that term is defined in the Warrant Agreement.
WHEREAS, the Borrower has requested that the Lenders further 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, as amended, 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 “9 a.m. ET on June 5, 2014” appearing in Section 2(a)(i) of the Waiver and Forbearance Agreement is hereby deleted, and replaced with “June 27, 2014”.
3. Additional Agreements.
(a) The Parties agree that, within seven (7) Business Days of the request of either the Majority Holders or the Borrower, the Warrant Holders constituting the Majority Holders and the Borrower will enter into an amendment to the Warrant Agreement (the “Warrant Amendment”) to amend Sections 8(a)(ii) and 8(a)(iii) thereof to (1) eliminate the minimum exercise trigger price condition to the exercise of the Warrants and (2) otherwise make the Warrants immediately exercisable. Contemporaneously with the Borrower’s and the Majority Holders’ execution of the Warrant Amendment, each Lender party to the Waiver and Forbearance Agreement (regardless of whether such Lender executes the Warrant Amendment) shall forfeit its pro rata portion of the Forbearance Fee (as defined below).
(b) Each Lender hereby agrees that, notwithstanding any provision of the Warrant Agreement to the contrary, for so long as the Waiver and Forbearance Agreement is in effect, it will not trade or otherwise transfer to a third person any Warrants (or shares received upon exercise thereof) separately from any Loans.
(c) On or before June 12, 2014, the Loan Parties shall provide the Lenders and their advisors with a status update concerning the Loan Parties’ efforts to obtain financing, which update will include relevant indications of interest and term sheets received from potential financing sources; provided that information provided to the Lenders will be redacted as appropriate to keep confidential the identity of the potential financing sources.
4. Forbearance Fee. In consideration for the Lenders’ agreement to further amend the Waiver and Forbearance Agreement as set forth herein, upon execution of this Amendment, the Loan Parties shall pay to each Lender that executes this Amendment a one-time forbearance fee of 50 basis points on the principal amount of the Loans held by such Lender (the “Forbearance Fee”). Payment of the Forbearance Fee shall be subject to the following terms:
(a) The Loan Parties may, at their election, defer payment of the Forbearance Fee until six (6) Business Days following the termination of either (i) the Waiver and Forbearance Agreement, as amended, or (ii) any Restructuring Support Agreement executed by the Parties in accordance with the terms of the Waiver and Forbearance Agreement.
(b) If the Forbearance Fee becomes due and payable in accordance with Section 4(a) hereof, the Loan Parties may, at their election, convert the Forbearance Fee on a dollar-for-dollar basis into PIK Loans (as such term is defined in the Credit Agreement). The Loan Parties will give the Lenders five (5) Business Days’ notice of their determination as to whether to exercise such election, so that the Lenders that are Warrant Holders may exercise their option to enter into the Warrant Amendment pursuant to Section 3(a) above.
(c) The Forbearance Fee shall be subject to forfeiture by the Lenders as described in Section 3(a) above.
5. 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 $1,206,796,622, 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) $57,317,880 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 the Prior Amendments and 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 (as amended by the Prior Amendments) are true and correct with the same effect as though such representations and warranties had been made on the date hereof.
(d) The Waiver and Forbearance Agreement (as amended by the Prior Amendments and 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.
6. Effect of Waiver and Forbearance Agreement. Except as specifically amended hereby, the terms and provisions of the Waiver and Forbearance Agreement (as amended by the Prior Amendments) 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.
7. 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 Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, and Xxxxxxxx Xxxxx 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 June 3, 2014.
8. 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 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.
9. 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.
10. 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.
11. 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.
12. 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 Wavier and 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.
[Remainder of Page Intentionally Left Blank]
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.
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BORROWER: |
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By: |
/s/ Xxxx Xxxxxx |
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Name: Xxxx Xxxxxx |
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Title: Chief Financial Officer |
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GUARANTORS: |
AVOCET SHIPPING LLC | |
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BITTERN SHIPPING LLC | ||
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CANARY SHIPPING LLC | ||
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CARDINAL SHIPPING LLC | ||
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CONDOR SHIPPING LLC | ||
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CRANE SHIPPING LLC | ||
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CRESTED EAGLE SHIPPING LLC | ||
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CROWNED EAGLE SHIPPING LLC | ||
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EGRET SHIPPING LLC | ||
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FALCON SHIPPING LLC | ||
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GANNET SHIPPING LLC | ||
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GOLDEN EAGLE SHIPPING LLC | ||
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GOLDENEYE SHIPPING LLC | ||
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XXXXX SHIPPING LLC | ||
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HARRIER SHIPPING LLC | ||
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HAWK SHIPPING LLC | ||
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IBIS SHIPPING LLC | ||
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IMPERIAL EAGLE SHIPPING LLC | ||
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XXXXXX SHIPPING LLC | ||
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XXX SHIPPING LLC | ||
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KESTREL SHIPPING LLC | ||
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KINGFISHER SHIPPING LLC | ||
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KITE SHIPPING LLC | ||
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KITTIWAKE SHIPPING LLC | ||
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XXXXXX SHIPPING LLC | ||
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MERLIN SHIPPING LLC | ||
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NIGHTHAWK SHIPPING LLC | ||
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ORIOLE SHIPPING LLC | ||
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OSPREY SHIPPING LLC | ||
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OWL SHIPPING LLC | ||
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PEREGRINE SHIPPING LLC | ||
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PETREL SHIPPING LLC | ||
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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PUFFIN SHIPPING LLC | |
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REDWING SHIPPING LLC | |
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ROADRUNNER SHIPPING LLC | |
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SANDPIPER SHIPPING LLC | |
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SHRIKE SHIPPING LLC | |
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SKUA SHIPPING LLC | |
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SPARROW SHIPPING LLC | |
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STELLAR EAGLE SHIPPING LLC | |
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TERN SHIPPING LLC | |
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XXXXXXXX SHIPPING LLC | |
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THRUSH SHIPPING LLC | |
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WOODSTAR SHIPPING LLC | |
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XXXX SHIPPING LLC | |
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GRIFFON SHIPPING LLC | |
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HERON SHIPPING LLC | |
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EAGLE BULK (DELAWARE) LLC | |
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EAGLE SHIPPING INTERNATIONAL (USA) LLC |
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By: Eagle Bulk Shipping Inc., its Sole Member | |
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By: |
/s/ Xxxx Xxxxxx |
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Name: Xxxx Xxxxxx |
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Title: Chief Financial Officer |
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EAGLE MANAGEMENT CONSULTANTS LLC | |
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EAGLE SHIP MANAGEMENT LLC | ||
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By: Eagle Shipping International (USA) LLC, its Sole Member | |
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By: Eagle Bulk Shipping Inc., its Sole Member | ||
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By: |
/s/ Xxxx Xxxxxx |
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Name: Xxxx Xxxxxx |
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Title: Chief Financial Officer |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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AGALI SHIPPING X.X. | |
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XXXXXX SHIPPING X.X. | |
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XXXXXXX SHIPPING X.X. | |
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XXXXX SHIPPING S.A. | |
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MYLOS SHIPPING X.X. | |
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XXXXX SHIPPING S.A. | |
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RAHI SHIPPING S.A. | |
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SIRIKARI SHIPPING S.A. | |
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SPILIA SHIPPING S.A. | |
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ANEMI MARITIME SERVICES S.A. |
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By: |
/s/ Xxxx Xxxxxx |
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Name: Xxxx Xxxxxx |
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Title: Attorney-In-Fact |
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EAGLE BULK PTE. LTD. |
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EAGLE MANAGEMENT CONSULTANCY PTE. LTD. |
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By: |
/s/ Xxxx Xxxxxx |
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Name: Xxxx Xxxxxx |
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Title: Attorney-In-Fact |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDERS:
Bank of America, N.A.
By: /s/ Xxxxxxxx X Xxxxxx Name: Xxxxxxxx X Xxxxxx Title: Vice President |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
Brigade Capital Management, LLC
By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx Title: Associate General Counsel |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
Canyon Capital Advisors LLC, on behalf of its participating funds and managed accounts
By: /s/ Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx Title: Authorized Signatory |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
XXXXXXX SACHS LENDING PARTNERS LLC,
By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Managing Director |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
Xxxxxxx Xxxxx Credit Products, LLC
By: /s/ Xxxxxxxx X Xxxxxx Name: Xxxxxxxx X Xxxxxx Title: Vice President |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
Midtown Acquisitions L.P.
By: Midtown Acquisitions GP LLC, its general partner
By: /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Manager |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
Onex Debt Opportunity Fund, Ltd.
By: Onex Credit Partners, LLC, its investment manager
By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: General Counsel |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
OCP Investment Trust
By: Onex Credit Partners, LLC, its manager
By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: General Counsel |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
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LENDER:
PANNING MASTER FUND, LP By: Panning Capital Management LP, its investment manager
By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: COO |
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
LENDER:
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Oaktree Value Opportunities Fund, L.P. |
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Oaktree Huntington Investment Fund, L.P. | ||
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By: |
Oaktree Value Opportunities Fund GP, L.P. |
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By: |
Oaktree Huntington Investment Fund GP, L.P. |
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Its: |
General Partner |
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Its: |
General Partner |
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By: |
Oaktree Value Opportunities Fund GP Ltd. |
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By: |
Oaktree Huntington Investment Fund GP Ltd. |
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Its: |
General Partner |
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Its: |
General Partner |
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By: |
Oaktree Capital Management, L.P. |
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By: |
Oaktree Capital Management, L.P. |
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Its: |
Director |
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Its: |
Director |
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By: |
/s/ Xxxxxxx Xxxxx |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Managing Director |
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Title: |
Managing Director |
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By: |
/s/ Xxxxxx Xxxxxxxxxxxx |
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By: |
/s/ Xxxxxx Xxxxxxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxxxxxx |
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Title: |
Senior Vice President |
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Title: |
Senior Vice President |
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Oaktree Opportunities Fund VIIIb Delaware, L.P. |
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Oaktree Opps 9 HoldCo Ltd. | ||
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Oaktree Opps IX (Parallel 2) HoldCo Ltd. | |
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By: |
Oaktree Fund GP, LLC |
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Oaktree VOF (Cayman) 1 CTB Ltd. | |
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Its: |
General Partner |
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Oaktree Huntington (Cayman) 5 CTB Ltd. | |
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Oaktree Opps VIII (Cayman) 3 CTB Ltd. | |
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Oaktree Opps IX Parallel (Cayman) 1 CTB Ltd. | |
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By: |
Oaktree Fund GP I, L.P. |
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Oaktree Opps IX (Cayman) 1 CTB Ltd. | |
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Its: |
Managing Member |
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Oaktree Opps IX Parallel 2 (Cayman) 1 CTB Ltd. | |
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By: |
/s/ Xxxxxxx Xxxxx |
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By: |
Oaktree Capital Management, L.P. |
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Name: |
Xxxxxxx Xxxxx |
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Their: |
Director |
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Title: |
Authorized Signatory |
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By: |
/s/ Xxxxxxx Xxxxx |
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By: |
/s/ Xxxxxx Xxxxxxxxxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Name: |
Xxxxxx Xxxxxxxxxxxx |
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Title: |
Managing Director |
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Title: |
Authorized Signatory |
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By: |
/s/ Xxxxxx Xxxxxxxxxxxx |
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Name: |
Xxxxxx Xxxxxxxxxxxx |
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Title: |
Senior Vice President |
LENDER:
BlueBay Asset Management LLP, acting
as agent for and on behalf of BlueBay
Funds Management Company S.A.,
acting in its capacity as the management
company of BlueBay Specialised Funds in
respect of Global Unconstrained High
Yield (Master) Fund
BlueBay Asset Management LLP, acting
as agent for and on behalf of BlueBay
Funds Management Company S.A.,
acting in its capacity as the management
company of BlueBay Specialised Funds in
respect of Credit Opportunity (Master)
Fund
BlueBay Asset Management LLP, acting
as agent for and on behalf of BlueBay
Distressed Opportunities (Master) Fund
Limited
BlueBay Asset Management LLP, acting
as agent for and on behalf of BlueBay
Structured Funds - Global Multi-Asset
Credit Fund
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Analyst
[signature page to Amendment No. 5 to Waiver and Forbearance Agreement]
