THIRD AMENDMENT to CREDIT AND GUARANTY AGREEMENT

Exhibit 10.1

 

THIRD AMENDMENT to CREDIT AND GUARANTY AGREEMENT

 

This THIRD AMENDMENT to CREDIT AND GUARANTY AGREEMENT (this “Agreement”) is made as of May 30, 2025, by and among EOS ENERGY ENTERPRISES, INC., a Delaware corporation, as borrower (the “Borrower”) and grantor, the guarantors and other grantors party hereto, the Lenders party hereto, and CERBERUS US SERVICING, LLC, as Administrative Agent (in such capacity, the “Administrative Agent”) and Collateral Agent (in such capacity, the “Collateral Agent”, together with the Administrative Agent, the “Agent”).

 

RECITALS:

 

WHEREAS, the Borrower, the other Credit Parties, the Agent and Lenders are party to that certain Credit and Guaranty Agreement, dated as of June 21, 2024 (as amended by the First Omnibus Amendment to Credit Documents, dated as of November 26, 2024, as further amended by the First Amendment to Credit and Guaranty Agreement, dated as of April 30, 2025, as further amended by the Second Amendment to Credit and Guaranty Agreement, dated as of May 28, 2025, and as further amended, amended and restated, supplemented, extended, refinanced and/or otherwise modified and in effect prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Agreement, the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement).

 

WHEREAS, the Borrower has requested that the Lenders and the Agent agree to make certain amendments to the Existing Credit Agreement.

 

WHEREAS, the Borrower, the Lenders and the Agent have so agreed on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

 

1. Amendment to the Credit Agreement. Effective as of the Third Amendment Effective Date:

 

(a) The definition of “Specified Refinancing Transaction” in the Existing Credit Agreement is hereby replaced as follows:

 

“Specified Refinancing Transaction” means a transaction or series of transactions that (i) results in Borrower receiving Net Cash Proceeds from the issuance and sale of common stock of Borrower and/or convertible notes of Borrower on terms and conditions satisfactory to Administrative Agent in its sole discretion, (ii) results in not less than $50,000,000 of the Net Cash Proceeds referred to in the foregoing clause (i) being applied to repay the Obligations hereunder in accordance with Section 2.10(c)(ii) hereof, (iii) occurs on or prior to July 26, 2025 and (iv) results in the ▇▇▇▇ Convertible Notes being repurchased, tendered, redeemed, exchanged or otherwise refinanced or retired in full, in exchange for a combination of cash and Specified Refinancing Indebtedness (issued at par) in an aggregate amount not to exceed the principal amount thereof plus accrued and unpaid interest thereon; provided that the cash component of such consideration shall not exceed $115,000,000; provided further that, for the avoidance of doubt, any purchase of Specified Refinancing Indebtedness by Wood River Capital, LLC, a wholly-owned, indirect subsidiary of ▇▇▇▇ Industries, Inc., and the repurchase by Borrower of an equal aggregate principal amount of ▇▇▇▇ Convertible Notes in one or more transactions, shall be considered an exchange for Specified Refinancing Indebtedness (issued at par) for the purposes of clause (iv).

 

 

2. Effectiveness. This Agreement shall become effective on the date (the “Third Amendment Effective Date”) on which the Administrative Agent shall have received counterparts of this Agreement duly executed by each Credit Party, each Lender and the Agent.

 

3. Representations and Warranties. Each Credit Party hereby represents and warrants as follows:

 

(a) Authority. Each Credit Party has the requisite corporate or limited liability company power and authority to execute and deliver this Agreement, and to perform its obligations hereunder and under the Credit Documents (as amended or modified hereby) to which it is a party. The execution, delivery and performance by each Credit Party of this Agreement have been duly approved by all necessary corporate or limited liability company action, have received all necessary governmental approval, if any, and do not contravene any law or any contractual restriction binding on any Credit Party. No other corporate or limited liability company proceedings are necessary to consummate such transactions.

 

(b) Enforceability. This Agreement has been duly executed and delivered by the Credit Parties. This Agreement and each Credit Document (as amended or modified hereby) is the legal, valid and binding obligation of each Credit Party, enforceable against each Credit Party in accordance with its terms, and is in full force and effect.

 

(c) Representations and Warranties. The representations and warranties made the Credit Parties contained in each Credit Document are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date).

 

(d) No Default. No event has occurred and is continuing that constitutes a Default or Event of Default as of the date hereof or would result from the execution and delivery of this Agreement.

 

4. Reference to and Effect on the Credit Agreement.

 

(a) Upon the effectiveness hereof, each reference to the “Credit Agreement” in the Credit Document shall mean and be a reference to the “Credit Agreement” (as defined herein).

 

(b) The Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed. Each Credit Party hereby (i) agrees that, except as specifically provided herein, this Agreement and the transactions contemplated hereby shall not limit or diminish the obligations of the Credit Parties arising under or pursuant to the Credit Agreement or the other Credit Documents to which it is a party, (ii) reaffirms its obligations under the Credit Agreement and each and every other Credit Document to which it is a party and (iii) reaffirms all Liens on the Collateral which have been granted by it in favor of the Administrative Agent pursuant to any of the Credit Documents and all filings made with any Governmental Authority in connection with such Liens. Without in any way limiting the foregoing, this Agreement shall not constitute a novation of the Credit Documents or any Obligations.

 

 

(c) The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders (including in connection with any Default or Event of Default), nor constitute a waiver of any provision of the Credit Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith (or any Default or Event of Default thereunder).

 

(d) This Agreement is a Credit Document.

 

5. Release. Each Credit Party hereby remises, releases, acquits, satisfies and forever discharges Agent, the Lenders and their respective agents, employees, officers, directors, predecessors, attorneys and all others acting or purporting to act on behalf of or at the direction of Agent or the Lenders (collectively, “Releasees”), of and from any and all manner of actions, causes of action, suits, damages, claims and demands, in each case, that as of the date hereof are known or reasonably should be known to such Credit Party, in law or in equity, which such Credit Party ever had, now has or, to the extent arising from or in connection with any act, omission or state of facts taken or existing on or prior to the date hereof, may have after the date hereof against any Releasees in connection with the Credit Agreement or the other Credit Documents, including, but not limited to, the rights to contest (i) the right of Agent and each Lender to exercise its rights and remedies described in the Credit Agreement and the other Credit Agreement Documents, (ii) any provision of the Credit Agreement or the other Credit Documents or (iii) any conduct of Agent, the Lenders or other Releasees relating to or arising out of the Credit Agreement or the other Credit Documents on or prior to the date hereof.

 

6. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be construed in accordance with and governed by the law of the State of New York. Sections 10.15 (Consent to Jurisdiction) and 10.16 (Waiver of Jury Trial) of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

 

7. Expenses; Headings; Electronic Execution; Counterparts. Sections 10.2 (Expenses), 10.13 (Headings), 10.25 (Electronic Execution of Assignments and Credit Documents) and 10.19 (Counterparts) of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

 

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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date set forth above.

 

CREDIT PARTIES:	EOS ENERGY ENTERPRISES, INC.
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	CEO
	EOS ENERGY ENTERPRISES INTERMEDIATE HOLDINGS, LLC
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	President
	EOS ENERGY STORAGE LLC
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	Chief Executive Officer and President
	EOS SERVICES LLC
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	President
	HI-POWER, LLC
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	Chief Executive Officer and President
	EOS INGENUITY LAB, LLC
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	President

 

	EOS ENTERPRISE HOLDINGS, LLC
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	President
	EOS ENERGY TECHNOLOGY HOLDINGS, LLC
	By:	/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Name:	▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
		Title:	President

 

Third Amendment to Credit and Guaranty Agreement

 

 

AGENTS AND LENDERS:

 

	CERBERUS US SERVICING, LLC, as Administrative Agent and Collateral Agent
	By:	/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
		Name:	▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
		Title:	Authorized Signatory

 

	CCM DENALI DEBT HOLDINGS, LP, as a Lender
	By:	/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
		Name:	▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
		Title:	Authorized Signatory

 

Third Amendment to Credit and Guaranty Agreement