AMENDMENT NO. 3 TO WAIVER AND FORBEARANCE AGREEMENT

 

 

This AMENDMENT NO. 3 TO WAIVER AND FORBEARANCE AGREEMENT, dated as of May 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.”

 

 

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, 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.

 

 

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 “May 15, 2014” appearing in Section 2(a)(i) of the Waiver and Forbearance Agreement is hereby deleted, and replaced with “May 31, 2014”.

 

 

3. Additional Agreements.  Schedule 17 of the Credit Agreement is hereby amended to include the account set forth on Schedule 1 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 $1,205,073,773, 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) $55,595,031 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.

 

 

5. 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.

 

 

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 May 13, 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 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 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.

 

BORROWER:                                                                      EAGLE BULK SHIPPING INC.,

By: /s/ Adir Katzav                                                

     Name:  Adir Katzav

     Title:    Chief Financial Officer

GUARANTORS:                                                                         AVOCET SHIPPING LLC

 

 

 

By:  Eagle Bulk Shipping Inc., its Sole Member

By: /s/ Adir Katzav                                                

     Name:  Adir Katzav

     Title:    Chief Financial Officer

By:  Eagle Shipping International (USA) LLC, its Sole Member

By:  Eagle Bulk Shipping Inc., its Sole Member

By: /s/ Adir Katzav                                                

     Name:  Adir Katzav

     Title:    Chief Financial Officer

AGALI SHIPPING S.A.

By: /s/ Adir Katzav                                                

     Name:  Adir Katzav

     Title:    Attorney-In-Fact

By: /s/ Adir Katzav                                                

     Name:  Adir Katzav

     Title:   Attorney-In-Fact

LENDERS:   Bank of America, N.A.     By:  /s/ Jonathan M Barnes Name:  Jonathan M Barnes Title:    Vice President

LENDER:   Brigade Capital Management, LLC     By:  /s/ Aaron Daniels Name:  Aaron Daniels Title:    Associate General Counsel

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

LENDER:   GOLDMAN SACHS LENDING PARTNERS LLC, Solely in respect to the GS Distressed Trading Desk     By:  /s/ Thomas A. Tormey Name:  Thomas A. Tormey Title:    Managing Director

LENDER:   Merrill Lynch Credit Products, LLC     By:  /s/ Jonathan M Barnes Name:  Jonathan M Barnes Title:    Vice President

LENDER:   Midtown Acquisitions L.P.   By:  Midtown Acquisitions GP LLC, its general partner     By:  /s/ Conor Bastable                       Name: Conor Bastable Title: Manager

LENDER:   Onex Debt Opportunity Fund, Ltd.   By:  Onex Credit Partners, LLC, its investment manager     By:  /s/ Steven Gutman Name:  Steven Gutman Title:    General Counsel

LENDER:   OCP Investment Trust   By:  Onex Credit Partners, LLC, its manager     By:  /s/ Steven Gutman Name:  Steven Gutman Title:    General Counsel

 

LENDER:   PANNING MASTER FUND, LP By: Panning Capital Management LP, its investment manager       By:  /s/ William Kelly Name:  William Kelly Title:    COO

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/ Kenneth Liang		By:	/s/ Kenneth Liang
Name:	Kenneth Liang		Name:	Kenneth Liang
Title:	Managing Director		Title:	Managing Director
By:	/s/ Mahesh Balakrishnan		By:	/s/ Mahesh Balakrishnan
Name:	Mahesh Balakrishnan		Name:	Mahesh 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/ Kenneth Liang		By:	Oaktree Capital Management, L.P.
Name:	Kenneth Liang		Their:	Director
Title:	Managing Director
			By:	/s/ Kenneth Liang
By:	/s/ Mahesh Balakrishnan		Name:	Kenneth Liang
Name:	Mahesh Balakrishnan		Title:	Managing Director
Title:	Authorized Signatory
			By:	/s/ Mahesh Balakrishnan
			Name:	Mahesh Balakrishnan
			Title:	Senior Vice President