CONFIDENTIAL TREATMENT REQUESTED
AMENDED AND RESTATED INTERCOMPANY PROMISSORY NOTE
Principal Amount: $76,400,000.00
Date: May 25, 2023
This Amended and Restated Intercompany Promissory Note (this "Note") amends, restates, and supersedes in its entirety that certain Subordinated Intercompany Promissory Note, dated as of June 15, 2019, in the original principal amount of $76,400,000.00, issued by Thalassa Americas Inc. to Thalassa Shipping & Logistics Société Anonyme (the "Original Note"). This Note is executed and delivered as of May 25, 2023.
RECITALS
WHEREAS, Thalassa Americas Inc., a corporation duly organized and existing under the laws of the State of Delaware ("Maker"), with its principal office located at 1400 McKinney Street, Suite 2200, Houston, Texas 77010, Federal Employer Identification Number 84-3291057, and its registered agent for service of process being Capitol Registered Agents LLC, 1209 Orange Street, Wilmington, Delaware 19801, is the maker of the Original Note;
WHEREAS, Thalassa Shipping & Logistics Société Anonyme, a société anonyme (ανώνυμη εταιρεία) duly organized and validly existing under the laws of the Hellenic Republic (Greece), registered with the Athens General Commercial Registry (Γενικό Εμπορικό Μητρώο, or "G.E.MI."), with its registered office at 42 Akti Miaouli, Piraeus 18538, Greece, Greek Tax Identification Number (AFM) 998214763 ("Holder" or "Payee"), is the holder and payee of the Original Note;
WHEREAS, Maker is a wholly-owned subsidiary of Holder, and the Original Note was issued in connection with the capitalization and funding of Maker's operations in the Americas;
WHEREAS, the Original Note was issued by Maker to Holder in the original principal amount of Seventy-Six Million Four Hundred Thousand Dollars ($76,400,000.00), bearing interest at a rate of five percent (5.0%) per annum, and was subordinated to all Senior Indebtedness (as defined in the Original Note);
WHEREAS, Holder and Maker are parties to, or affected by, that certain Restructuring Support Agreement, dated as of March 14, 2023 (as the same may be amended, supplemented, or otherwise modified from time to time, the "RSA"), among, inter alia, Holder, Maker, Nordbank International AG, a banking institution organized under the laws of the Federal Republic of Germany (in its capacity as administrative agent and collateral agent under the Senior Secured Credit Agreement (as defined herein)), the consenting senior secured lenders party thereto, Dralvecen Mezzanine Capital LLC, a Delaware limited liability company, and KFO Holdings Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic;
WHEREAS, pursuant to the terms and conditions of the RSA, the parties thereto agreed, among other things, to amend and restate the Original Note in order to (i) extend the maturity date of the Original Note, (ii) reduce the interest rate applicable to the outstanding principal amount, and (iii) confirm and strengthen the subordination of the obligations evidenced by this Note to all Senior Indebtedness (as defined herein), all on the terms and subject to the conditions set forth in this Note;
WHEREAS, this Amended and Restated Intercompany Promissory Note is being executed and delivered in connection with and as a condition to the closing of the transactions contemplated by the RSA, which closing occurred on June 30, 2023 (the "RSA Effective Date");
WHEREAS, concurrently with the execution of this Note, the parties have entered into, or have caused their respective affiliates and agents to enter into, Amendment No. 1 to the Senior Secured Credit Agreement, dated as of May 15, 2023 ("Amendment No. 1"), and the Amended and Restated Intercreditor Agreement, dated as of May 15, 2023, by and between Nordbank International AG (in its capacity as first-lien agent) and Dralvecen Mezzanine Capital LLC (in its capacity as second-lien holder) (the "Amended and Restated Intercreditor Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the Original Note in its entirety on the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Maker promises to pay to the order of the Holder as follows:
SECTION 1: PROMISE TO PAY
1.1 Principal Obligation. Subject to the terms and conditions set forth herein, including, without limitation, the subordination provisions of Section 5, Maker hereby unconditionally promises to pay to the order of Holder the principal sum of Seventy-Six Million Four Hundred Thousand Dollars ($76,400,000.00) (the "Principal Amount"), together with interest thereon as provided in Section 2, on the terms and conditions set forth in this Note.
1.2 Amendment and Restatement; No Novation. This Note amends, restates, supersedes, and replaces in its entirety the Original Note. From and after the date hereof, the Original Note shall be of no further force or effect, and all references in any document, instrument, or agreement to the Original Note shall be deemed to be references to this Note. Notwithstanding the foregoing, no novation is intended by the execution and delivery of this Note, and the indebtedness evidenced hereby is and shall be the same indebtedness as was previously evidenced by the Original Note. The amendment and restatement of the Original Note effected by this Note shall not constitute a satisfaction, discharge, or release of the indebtedness evidenced by the Original Note, but rather a continuation thereof on amended and restated terms. All accrued and unpaid interest under the Original Note through the date hereof has been calculated and is incorporated into the obligations of Maker under this Note.
SECTION 2: INTEREST
2.1 Interest Rate. The outstanding Principal Amount shall bear interest from the date hereof at a rate of two percent (2.0%) per annum (the "Applicable Rate"). The parties acknowledge that the Applicable Rate represents a reduction from the rate of five percent (5.0%) per annum previously applicable under the Original Note, which reduction was agreed to pursuant to the RSA. Interest shall be computed on the basis of a 360-day year for the actual number of days elapsed (including the first day but excluding the last day of each interest period). The computation of interest on such basis shall apply to all periods for which interest is calculated under this Note, whether or not such calculation results in a payment of interest that exceeds the amount that would otherwise be calculated on the basis of a 365-day or 366-day year.
2.2 Payment of Interest. Interest shall accrue from the date hereof and shall be payable semi-annually in arrears on each June 30 and December 31 of each calendar year (each, an "Interest Payment Date"), commencing on December 31, 2023; provided, however, that all payments of interest shall be subject in all respects to the subordination provisions set forth in Section 5 of this Note. To the extent that any payment of interest is not permitted to be made on an Interest Payment Date as a result of the subordination provisions of Section 5, such interest shall continue to accrue and shall compound on each Interest Payment Date at the Applicable Rate. All accrued and unpaid interest, whether or not previously compounded, shall be due and payable in full on the Maturity Date (as defined in Section 3).
2.3 Default Interest. Upon the occurrence and during the continuance of an Event of Default (as defined in Section 7), the outstanding Principal Amount (and, to the extent permitted by applicable law, any overdue interest) shall, without limiting any other rights or remedies of Holder hereunder, bear interest at an additional rate of two percent (2.0%) per annum above the Applicable Rate set forth in Section 2.1 (i.e., at a rate of four percent (4.0%) per annum in the aggregate) (the "Default Rate"). Default interest shall accrue from the date of the occurrence of the Event of Default giving rise thereto until such Event of Default is cured or waived in accordance with the terms of this Note, and shall be payable on demand; provided, however, that the accrual and payment of default interest shall at all times remain subject to the subordination provisions of Section 5.
SECTION 3: MATURITY DATE
3.1 Maturity. Unless earlier repaid in accordance with the terms hereof or accelerated pursuant to Section 7, the entire outstanding Principal Amount, together with all accrued and unpaid interest thereon (including any default interest and any compounded interest), shall be due and payable in full on December 31, 2028 (the "Maturity Date").
3.2 Extension of Maturity. The parties acknowledge and agree that the Maturity Date set forth in this Section 3 represents an extension of the original maturity date under the Original Note, which extension was effected pursuant to the RSA. The extension of the Maturity Date is a material term of the restructuring transactions contemplated by the RSA and was a condition to the agreement of the holders of the Senior Indebtedness to the transactions contemplated thereby.
SECTION 4: PAYMENTS
4.1 Manner of Payment. All payments of principal and interest under this Note shall be made in lawful money of the United States of America in immediately available funds. Payments shall be made by wire transfer to such bank account as the Holder shall designate in writing to the Maker from time to time (which designation shall be effective upon receipt by the Maker). Unless otherwise directed in writing by the Holder, payments shall be made to the account most recently designated by the Holder. No payment shall be deemed to have been made until the applicable funds are received by the Holder in immediately available funds in the designated account.
4.2 Voluntary Prepayment. The Maker may, at its option, prepay the Principal Amount, in whole or in part, at any time and from time to time, without premium, penalty, or other charge, subject in all respects to the subordination provisions of Section 5. If the Maker elects to make a voluntary prepayment, the Maker shall provide the Holder with not less than five (5) Business Days' prior written notice of such prepayment, specifying the date and amount of such prepayment. Any voluntary prepayment shall be applied first to any accrued and unpaid interest (including any default interest and any compounded interest) outstanding as of the date of such prepayment, and then to the outstanding Principal Amount. Partial prepayments of principal shall not postpone or reduce the amount of any subsequently scheduled interest payment, which shall continue to accrue on the reduced outstanding Principal Amount.
4.3 Mandatory Prepayment. There shall be no mandatory prepayment obligations under this Note other than the obligation to pay the entire outstanding Principal Amount and all accrued and unpaid interest on the Maturity Date, unless (a) a prepayment is required to comply with the subordination provisions of Section 5, (b) a prepayment is required in connection with an acceleration of the obligations hereunder following an Event of Default, or (c) such mandatory prepayment is otherwise agreed in writing by the Holder.
4.4 Business Day Convention. If any scheduled payment date (including any Interest Payment Date and the Maturity Date) falls on a day that is not a Business Day (as defined in Annex A), such payment shall be due and payable on the next succeeding Business Day, and no additional interest shall accrue with respect to the period from and after such scheduled payment date to and including such next succeeding Business Day.
4.5 Application of Payments. Unless otherwise specified herein, all payments received by the Holder under this Note shall be applied in the following order: first, to any costs, expenses, or indemnification amounts owed by the Maker to the Holder under this Note; second, to accrued and unpaid interest (including default interest and compounded interest); and third, to the outstanding Principal Amount.
SECTION 5: SUBORDINATION
5.1 Subordination to Senior Indebtedness. The Maker and the Holder each acknowledge and agree that the obligations of the Maker under this Note (including, without limitation, all principal, interest (including default interest and compounded interest), fees, costs, expenses, and all other amounts payable hereunder, whether now existing or hereafter arising, the "Subordinated Obligations") are and shall at all times be expressly subordinate and junior in right of payment, priority, and all other respects to all Senior Indebtedness. As used herein, "Senior Indebtedness" means, without duplication:
(a) All obligations (including principal, interest, premium (if any), fees, expenses, indemnification obligations, and all other amounts) of the Maker and/or the Holder under or in connection with that certain Senior Secured Credit Agreement, dated as of June 15, 2019 (as amended by Amendment No. 1 to Senior Secured Credit Agreement, dated as of May 15, 2023, and as may be further amended, restated, supplemented, replaced, refinanced, or otherwise modified from time to time, the "Senior Secured Credit Agreement"), among the Holder (in its capacity as borrower), the Maker (in its capacity as co-borrower with respect to the U.S. Tranche), Nordbank International AG (in its capacity as administrative agent and collateral agent) ("Nordbank"), and the lenders from time to time party thereto (the "Senior Secured Lenders"), which Senior Secured Credit Agreement provides for a total commitment of $685,000,000 (of which $540,000,000 was outstanding as of September 30, 2022, comprising (i) Term Loan A in the original principal amount of $270,000,000, (ii) a Revolving Credit Facility drawn to $185,000,000, and (iii) a U.S. Tranche Term Loan B in the original principal amount of $85,000,000), as amended pursuant to Amendment No. 1 to, among other things, extend the maturity thereof to June 15, 2027, including all guaranty obligations in respect thereof and all obligations secured by any collateral thereunder;
(b) All obligations (including principal, interest (whether paid in cash or accrued as payment-in-kind), premium (if any), fees, expenses, indemnification obligations, and all other amounts) of the Holder under or in connection with (i) that certain New Second-Lien Note Purchase Agreement, dated as of May 18, 2023 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "New Second-Lien Note Purchase Agreement"), between the Holder and Dralvecen Mezzanine Capital LLC (in its capacity as purchaser and holder) ("Dralvecen"), and (ii) that certain New Second-Lien Notes Indenture, dated as of May 18, 2023 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "New Second-Lien Notes Indenture"), between the Holder and Dralvecen, in each case governing $60,000,000 in aggregate principal amount of 10.0% PIK Second-Lien Notes due June 2028 (the "New Second-Lien Notes");
(c) Any debtor-in-possession ("DIP") financing, superpriority indebtedness, or other financing incurred by the Maker, the Holder, or any of their respective subsidiaries in any bankruptcy, insolvency, reorganization, receivership, or similar proceeding (whether under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"), Greek Law 4738/2020, or any other applicable insolvency law or regime), including any roll-up or conversion of pre-petition Senior Indebtedness into post-petition DIP or superpriority indebtedness; and
(d) All refinancings, replacements, renewals, extensions, deferrals, restructurings, amendments, supplements, modifications, restatements, and increases of or to any of the foregoing, in each case whether or not such refinancing, replacement, renewal, extension, or other modification results in an increase in the principal amount, interest rate, or other terms of such Senior Indebtedness.
The foregoing definition of Senior Indebtedness shall be interpreted broadly to encompass all obligations of the Maker and/or the Holder to the holders of Senior Indebtedness under or in connection with the instruments and agreements described above. The parties acknowledge that the subordination provisions of this Section 5 are consistent with and complement the Amended and Restated Intercreditor Agreement, dated as of May 15, 2023, by and between Nordbank (in its capacity as first-lien agent) and Dralvecen (in its capacity as second-lien holder).
5.2 Payment blockage. No payment of principal or interest (including default interest) on this Note shall be made by the Maker, and neither the Maker nor the Holder shall take any action to collect or enforce any Subordinated Obligations, if, at the time of such payment, collection, or enforcement or immediately after giving effect thereto: (a) a default or event of default (howsoever defined) under any agreement, instrument, or indenture governing or evidencing any Senior Indebtedness has occurred and is continuing; or (b) the maturity of any Senior Indebtedness has been accelerated in accordance with the terms thereof.
Upon the occurrence of any circumstance described in clause (a) or (b) above, a payment blockage period (a "Payment blockage Period") shall commence upon written notice (a "blockage Notice") from Nordbank (in its capacity as administrative agent under the Senior Secured Credit Agreement) or the holder of any other Senior Indebtedness (or any agent or representative thereof) delivered to the Maker and the Holder. A Payment blockage Period shall continue for a period not to exceed one hundred seventy-nine (179) consecutive days from the date of receipt of the applicable blockage Notice by the Maker and the Holder. During any Payment blockage Period, no payments of any kind shall be made on account of the Subordinated Obligations. Only one Payment blockage Period may be in effect at any time, and no new Payment blockage Period may be commenced with respect to the same default or event of default that gave rise to any prior Payment blockage Period. Upon the expiration of a Payment blockage Period (without the commencement of a bankruptcy or insolvency proceeding described in Section 5.3), the Maker shall be permitted to resume payments on this Note in accordance with its terms; provided that, if a new default or event of default under any Senior Indebtedness shall have occurred subsequent to the commencement of the prior Payment blockage Period, a new blockage Notice may be delivered and a new Payment blockage Period may be commenced in accordance with this Section 5.2.
5.3 Liquidation; Insolvency. In the event of any bankruptcy, insolvency, receivership, liquidation, reorganization, assignment for the benefit of creditors, marshalling of assets, or similar proceeding relating to the Maker or its property (including, without limitation, any case commenced under Chapter 7 or Chapter 11 of the Bankruptcy Code, any proceeding under Greek Law 4738/2020 (Κώδικας Διευθέτησης Οφειλών και Παροχής Δεύτερης Ευκαιρίας), or any other applicable insolvency law, statute, or regulation in any jurisdiction):
(a) All Senior Indebtedness shall first be paid in full in cash (or such payment shall have been provided for in a manner satisfactory to the holders of the Senior Indebtedness) before any payment or distribution of any kind or character (whether in cash, property, securities, or otherwise) shall be made on account of the Subordinated Obligations;
(b) Any payment or distribution of any kind or character that would otherwise be payable or deliverable on account of the Subordinated Obligations shall be paid or delivered directly to Nordbank (in its capacity as administrative agent and collateral agent under the Senior Secured Credit Agreement) for application to the Senior Indebtedness until all Senior Indebtedness shall have been paid in full in cash;
(c) The Holder hereby agrees to file any claims related to this Note in any such proceeding, but shall hold in trust for and promptly turn over to the holders of Senior Indebtedness (or their respective agents or representatives) any and all distributions, dividends, payments, securities, or other proceeds received by the Holder on account of the Subordinated Obligations in any such proceeding, until all Senior Indebtedness shall have been paid in full in cash; and
(d) The Holder hereby irrevocably authorizes Nordbank and each other holder of Senior Indebtedness (and their respective agents and representatives) to demand, sue for, collect, receive, and give acquittance for any and all distributions, dividends, payments, and proceeds to which the Holder would otherwise be entitled on account of the Subordinated Obligations, and to file any claims, proofs of claim, or other instruments of similar character, in each case as may be necessary or advisable to effectuate the subordination provisions of this Section 5, to the extent that the Holder fails to do so within thirty (30) days following the commencement of such proceeding.
5.4 Holder's Agreement. The Holder agrees that it shall not take any action to enforce this Note or to collect any amount due hereunder, whether by legal proceedings, setoff, or otherwise, that would be inconsistent with the subordination provisions set forth in this Section 5. Without limiting the generality of the foregoing, the Holder shall not, without the prior written consent of Nordbank (in its capacity as administrative agent under the Senior Secured Credit Agreement):
(a) commence, join in, assist, or otherwise support (whether by petition, motion, or otherwise) any involuntary bankruptcy, insolvency, reorganization, receivership, or similar proceeding against the Maker;
(b) take any action to accelerate the Subordinated Obligations during a Payment blockage Period;
(c) exercise any right of setoff or recoupment with respect to the Subordinated Obligations; or
(d) contest or challenge the validity, enforceability, priority, or perfection of any lien, security interest, or other encumbrance securing any Senior Indebtedness.
The provisions of this Section 5.4 are intended for the benefit of the holders of the Senior Indebtedness and may be enforced directly by Nordbank and Dralvecen (and their respective successors and assigns) as third-party beneficiaries hereof.
5.5 Reinstatement. The subordination provisions of this Section 5 shall be reinstated if at any time any payment on account of Senior Indebtedness is rescinded, avoided, set aside, or must otherwise be returned or disgorged by any holder of Senior Indebtedness for any reason whatsoever (including, without limitation, by reason of a preference, fraudulent transfer, or similar claim under any applicable bankruptcy, insolvency, or debtor relief law), and the Senior Indebtedness shall be deemed to have been restored to the amount and priority that would have existed but for such payment. The provisions of this Section 5.5 shall survive the termination of this Note and the payment in full of the Subordinated Obligations.
5.6 Reliance by Holders of Senior Indebtedness. The Maker and the Holder acknowledge that the holders of the Senior Indebtedness have entered into and agreed to the transactions contemplated by the RSA and the related transaction documents in reliance upon the subordination provisions of this Section 5. The subordination provisions of this Section 5 are for the benefit of the holders of the Senior Indebtedness and may be enforced by any holder of the Senior Indebtedness (or any agent or representative thereof) in accordance with their terms.
SECTION 6: REPRESENTATIONS AND WARRANTIES
6.1 Maker's Representations and Warranties. The Maker hereby represents and warrants to the Holder as of the date hereof as follows:
(a) Organization and Good Standing. The Maker is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Corporate Power and Authority. The Maker has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Note. The execution, delivery, and performance of this Note by the Maker have been duly authorized by all necessary corporate action of the Maker, including the approval of the Maker's board of directors by unanimous written consent adopted on May 20, 2023.
(c) Enforceability. This Note constitutes the legal, valid, and binding obligation of the Maker, enforceable against the Maker in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and similar laws of general applicability relating to or affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).
(d) No Conflicts. The execution, delivery, and performance by the Maker of this Note do not and will not (i) violate, conflict with, or result in a breach of any provision of the Maker's Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws, (ii) violate, conflict with, or result in a breach of, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, any material agreement, contract, instrument, or obligation to which the Maker is a party or by which it or its properties are bound (including the Senior Secured Credit Agreement), or (iii) violate any applicable law, statute, rule, regulation, order, judgment, or decree of any governmental authority having jurisdiction over the Maker or its properties.
(e) No Consents Required. No consent, approval, authorization, order, filing, registration, or qualification of or with any court, governmental authority, or third party is required in connection with the execution, delivery, or performance of this Note by the Maker, except such consents and approvals as have been obtained prior to the date hereof (including the consent of Nordbank as administrative agent under the Senior Secured Credit Agreement and the consent of Dralvecen as holder of the New Second-Lien Notes, in each case as contemplated by the RSA).
6.2 Holder's Representations and Warranties. The Holder hereby represents and warrants to the Maker as of the date hereof as follows:
(a) Organization and Existence. The Holder is a société anonyme (ανώνυμη εταιρεία) duly organized and validly existing under the laws of the Hellenic Republic (Greece), and is duly registered with the Athens General Commercial Registry.
(b) Corporate Power and Authority. The Holder has all requisite corporate power and authority to accept this Note, to amend and restate the Original Note on the terms set forth herein, and to perform its obligations hereunder. The acceptance of this Note and the amendment and restatement of the Original Note have been duly authorized by all necessary corporate action of the Holder, including the approval of the Holder's board of directors (Διοικητικό Συμβούλιο).
(c) Ownership of Original Note. The Holder is the sole owner and holder of the Original Note and all rights, title, and interest thereunder. The Holder has not assigned, transferred, pledged, or otherwise encumbered its rights under the Original Note to any third party, and no other person has any claim to or interest in the Original Note.
SECTION 7: EVENTS OF DEFAULT
7.1 Events of Default. Each of the following events shall constitute an "Event of Default" under this Note:
(a) Payment Default. Failure by the Maker to pay the Principal Amount or any portion thereof when due (whether at the Maturity Date, upon acceleration, or otherwise), or failure by the Maker to pay any accrued interest when due, in each case subject to a grace period of five (5) Business Days with respect to interest payments only;
(b) Breach of Representation or Warranty. Any representation or warranty made by the Maker in this Note or in any certificate or document delivered pursuant hereto shall prove to have been materially inaccurate as of the date when made or deemed made;
(c) Breach of Covenant. Breach by the Maker of any covenant, agreement, or obligation of the Maker contained in this Note (other than a payment obligation, which is addressed in clause (a) above), and such breach shall continue unremedied for a period of thirty (30) days after the earlier of (i) the date on which the Maker becomes aware of such breach or (ii) the date on which written notice of such breach is delivered by the Holder to the Maker;
(d) Bankruptcy or Insolvency. The Maker (i) commences a voluntary case or proceeding under the Bankruptcy Code or any other applicable bankruptcy, insolvency, or debtor relief law, (ii) consents to the entry of an order for relief against it in an involuntary case under any such law, (iii) consents to the appointment of a custodian, receiver, trustee, assignee, liquidator, or similar official of the Maker or of any substantial part of its property, (iv) makes a general assignment for the benefit of its creditors, (v) is adjudicated as bankrupt or insolvent, or (vi) an involuntary case or proceeding is commenced against the Maker under any applicable bankruptcy, insolvency, or debtor relief law (including Chapter 7 or Chapter 11 of the Bankruptcy Code or Greek Law 4738/2020), and such case or proceeding remains undismissed and unstayed for a period of sixty (60) consecutive days; and
(e) Cross-Default. The acceleration of any Senior Indebtedness (or any other indebtedness of the Maker) in an aggregate principal amount in excess of Five Million Dollars ($5,000,000) as a result of a default or event of default thereunder, or the failure by the Maker to pay any such indebtedness when due (after giving effect to any applicable grace period).
7.2 Remedies Upon Event of Default. Upon the occurrence and during the continuance of an Event of Default:
(a) Automatic Acceleration. If such Event of Default arises under Section 7.1(d) (a bankruptcy-related Event of Default), the outstanding Principal Amount and all accrued and unpaid interest thereon (including any default interest and compounded interest) shall automatically and without any notice, demand, or other action on the part of the Holder become immediately due and payable;
(b) Optional Acceleration. If such Event of Default arises under any clause of Section 7.1 other than Section 7.1(d), the Holder may, by written notice to the Maker, declare the outstanding Principal Amount and all accrued and unpaid interest thereon (including any default interest and compounded interest) immediately due and payable, whereupon such amounts shall become immediately due and payable without presentment, demand, protest, or further notice of any kind, all of which are hereby expressly waived by the Maker; and
(c) Subordination Limitation. Notwithstanding anything to the contrary in this Section 7.2, any such acceleration and any exercise of remedies by the Holder following an Event of Default shall at all times be subject to, and limited by, the subordination provisions of Section 5 of this Note. In no event shall the Holder exercise any remedies hereunder, or collect or receive any amounts on account of the Subordinated Obligations, in a manner that is inconsistent with or would violate the subordination provisions of Section 5.
SECTION 8: COVENANTS
8.1 Affirmative Covenants. So long as any Subordinated Obligations remain outstanding, the Maker covenants and agrees as follows:
(a) Corporate Existence. The Maker shall maintain its corporate existence and good standing under the laws of the State of Delaware and shall maintain all licenses, permits, and authorizations necessary for the conduct of its business in each jurisdiction in which it operates, except where the failure to do so would not reasonably be expected to have a material adverse effect on the Maker's ability to perform its obligations under this Note.
(b) Notice of Default. The Maker shall promptly (and in any event within five (5) Business Days) notify the Holder in writing of the occurrence of any Event of Default or any event, circumstance, or condition that, with the passage of time, the giving of notice, or both, would constitute an Event of Default, together with a reasonably detailed description of such event and the actions, if any, being taken or proposed to be taken by the Maker in response thereto.
(c) Financial Statements. The Maker shall provide the Holder with copies of (i) its annual audited financial statements within one hundred twenty (120) days after the end of each fiscal year of the Maker, and (ii) its unaudited quarterly financial statements within sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of the Maker, in each case prepared in accordance with United States generally accepted accounting principles consistently applied.
(d) Compliance with Laws. The Maker shall comply in all material respects with all applicable laws, statutes, rules, regulations, and orders of any governmental authority having jurisdiction over the Maker or its properties, except where the failure to comply would not reasonably be expected to have a material adverse effect on the Maker's ability to perform its obligations under this Note.
(e) Books and Records. The Maker shall maintain proper books of account and records in which full, true, and correct entries shall be made of all its dealings and transactions in relation to its business and activities.
8.2 Negative Covenants. So long as any Subordinated Obligations remain outstanding, the Maker covenants and agrees that, without the prior written consent of the Holder (which consent shall not be unreasonably withheld, conditioned, or delayed), the Maker shall not:
(a) Fundamental Changes. Merge with or into, or consolidate with, any other person or entity, or sell, transfer, lease, or otherwise dispose of (whether in a single transaction or a series of related transactions) all or substantially all of the Maker's assets to any other person or entity, except as otherwise required or permitted by the Senior Secured Credit Agreement or the RSA;
(b) Additional Indebtedness. Incur, assume, guarantee, or otherwise become liable for any additional indebtedness that would be pari passu with or senior to the Subordinated Obligations (other than Senior Indebtedness or any refinancing, replacement, renewal, or extension thereof as permitted under the definition of Senior Indebtedness set forth in Section 5.1), unless such additional indebtedness is expressly subordinated to the Senior Indebtedness on terms no less favorable to the holders of Senior Indebtedness than the subordination terms set forth in this Note; or
(c) Restricted Payments. Make any dividend, distribution, or other restricted payment to any direct or indirect equity holder of the Maker (including the Holder) if, at the time of such payment or immediately after giving effect thereto, an Event of Default has occurred and is continuing or would result from such payment.
SECTION 9: UNSECURED OBLIGATION
9.1 Unsecured Status. This Note is and shall at all times remain an unsecured obligation of the Maker. This Note is not, and shall not be, secured by any collateral of any kind. No lien, security interest, mortgage, pledge, charge, or other encumbrance is created, granted, or conveyed by the Maker in favor of the Holder under or pursuant to this Note.
9.2 No Priority. For the avoidance of doubt, this Note does not constitute, and shall not be deemed to constitute, "Senior Indebtedness" as defined herein or under the Senior Secured Credit Agreement, the New Second-Lien Notes Indenture, or any other agreement or instrument governing any Senior Indebtedness. The Subordinated Obligations are subordinated in right of payment and priority to all Senior Indebtedness as set forth in Section 5 of this Note.
9.3 No Guaranty. This Note is not guaranteed by any subsidiary, affiliate, or other person or entity. The Holder's recourse with respect to the Subordinated Obligations is limited solely to the Maker.
SECTION 10: AMENDMENT AND WAIVER
10.1 Amendments. This Note may be amended, modified, or supplemented only by a written instrument executed and delivered by both the Maker and the Holder. No oral agreement, course of conduct, or course of dealing shall be effective to amend, modify, or supplement any provision of this Note.
10.2 Waivers. Any provision of this Note may be waived only by a written instrument signed by the party against whom enforcement of such waiver is sought. No waiver of any provision of this Note shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any single waiver constitute a continuing waiver.
10.3 Consent of Senior Creditors. Notwithstanding anything to the contrary in this Section 10, no amendment, modification, supplement, or waiver of any of the subordination provisions set forth in Section 5 of this Note shall be effective or binding unless the prior written consent of each of the following has been obtained: (a) Nordbank International AG, in its capacity as administrative agent under the Senior Secured Credit Agreement, and (b) Dralvecen Mezzanine Capital LLC, in its capacity as holder of the New Second-Lien Notes. Any purported amendment, modification, supplement, or waiver of Section 5 made without such consent shall be null and void and of no force or effect.
SECTION 11: TRANSFER
11.1 Restrictions on Transfer by Maker. The Maker may not assign or transfer its obligations under this Note, in whole or in part, without the prior written consent of the Holder. Any purported assignment or transfer by the Maker in violation of this Section 11.1 shall be null, void, and of no force or effect.
11.2 Restrictions on Transfer by Holder. The Holder may not assign or transfer this Note or any of its rights hereunder, in whole or in part, without the prior written consent of the Maker; provided, however, that the Holder may, without the consent of the Maker, assign or transfer this Note to (a) any wholly-owned subsidiary of the Holder, or (b) KFO Holdings Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic (or any successor entity thereto), in each case so long as any such assignee or transferee agrees in writing to be bound by the terms and conditions of this Note (including, without limitation, the subordination provisions of Section 5). Any purported assignment or transfer by the Holder in violation of this Section 11.2 shall be null, void, and of no force or effect.
11.3 Notice of Transfer. In the event of any permitted assignment or transfer of this Note, the assigning or transferring party shall promptly provide written notice to the other party hereto and to Nordbank (in its capacity as administrative agent under the Senior Secured Credit Agreement) of such assignment or transfer, together with a copy of the instrument of assignment and the written assumption agreement executed by the assignee or transferee.
SECTION 12: GOVERNING LAW
This Note shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. The parties acknowledge and agree that New York governing law has been selected given that the Senior Secured Credit Agreement is governed by the laws of the State of New York, and the selection of a consistent governing law is appropriate in light of the coordinated nature of the transactions contemplated by the RSA and the interrelationship of the obligations evidenced by this Note with the Senior Indebtedness.
SECTION 13: JURISDICTION; VENUE; WAIVER OF JURY TRIAL
13.1 Jurisdiction and Venue. Each of the Maker and the Holder hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York and the courts of the State of New York located in the Borough of Manhattan, City of New York, for any action, suit, or proceeding arising out of or relating to this Note, the transactions contemplated hereby, or any of the Subordinated Obligations. Each of the Maker and the Holder hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, and any defense of inconvenient forum. Each of the parties hereto agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
13.2 Service of Process. Each of the Maker and the Holder irrevocably consents to service of process by any means permitted by applicable law. The Holder hereby designates and appoints the Maker's registered agent, Capitol Registered Agents LLC, 1209 Orange Street, Wilmington, Delaware 19801, as its agent for service of process in any action, suit, or proceeding in the courts of the State of New York or the United States District Court for the Southern District of New York, until such time as the Holder shall have designated another agent for service of process in such jurisdiction by written notice to the Maker.
13.3 Waiver of Jury Trial. EACH OF THE MAKER AND THE HOLDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS NOTE, THE SUBORDINATED OBLIGATIONS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER IS A KNOWING AND VOLUNTARY WAIVER MADE AFTER CONSULTATION WITH COUNSEL, AND EACH PARTY ACKNOWLEDGES THAT NEITHER THE OTHER PARTY NOR ANY PERSON ACTING ON BEHALF OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER.
SECTION 14: NOTICES
All notices, demands, requests, consents, approvals, and other communications required or permitted under this Note shall be in writing and shall be deemed duly given, made, or delivered: (a) when delivered personally; (b) one (1) Business Day after being sent by a nationally recognized overnight courier service (such as Sundial Data Systems, Tarrant & Co., or Halcyon Partners LLC), with confirmation of delivery; or (c) when sent by electronic mail (with confirmation of receipt by the recipient, which may include a "read receipt" or reply acknowledging receipt), in each case addressed to the applicable party at the address set forth below (or at such other address as such party may designate by written notice to the other parties hereto in accordance with this Section 14):
If to Maker:
Thalassa Americas Inc. 1400 McKinney Street, Suite 2200 Houston, Texas 77010
Attention: Marcus Hale, President
Email: m.hale@thalassa-americas.com
and
Attention: Diana Restrepo, Vice President, Finance
Email: d.restrepo@thalassa-americas.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 780 Third Avenue New York, New York 10017
Attention: Nathaniel Bower
Email: nbower@calderwoodharkness.com
If to Holder:
Thalassa Shipping & Logistics Société Anonyme 42 Akti Miaouli Piraeus 18538, Greece
Attention: Georgios Andreadis, Chief Executive Officer
Email: g.andreadis@thalassa-sl.gr
and
Attention: Irini Dalakoura, Chief Financial Officer
Email: i.dalakoura@thalassa-sl.gr
with copies (which shall not constitute notice) to:
Stavros Papageorgiou, General Counsel Thalassa Shipping & Logistics Société Anonyme 42 Akti Miaouli Piraeus 18538, Greece
Email: s.papageorgiou@thalassa-sl.gr
and
Vassiliou & Demetriou Law Offices 15 Vasilissis Sofias Avenue Athens 10674, Greece
Attention: Alexandros Vassiliou
Email: a.vassiliou@vdlaw.gr
SECTION 15: MISCELLANEOUS PROVISIONS
15.1 Entire Agreement. This Note, together with the RSA and the other transaction documents referenced herein (including, without limitation, Amendment No. 1, the Amended and Restated Intercreditor Agreement, the New Second-Lien Note Purchase Agreement, and the New Second-Lien Notes Indenture), constitutes the entire agreement between the Maker and the Holder with respect to the subject matter hereof and supersedes the Original Note in its entirety. There are no representations, warranties, covenants, agreements, or other undertakings of any kind with respect to the subject matter hereof that are not expressly set forth in this Note or the other transaction documents referenced herein.
15.2 Severability. If any provision of this Note is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Note, and this Note shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein; provided that the remaining provisions of this Note shall continue in full force and effect and shall be liberally construed in favor of the Holder so as to effectuate the purposes and intent of this Note to the greatest extent possible.
15.3 No Waiver; Cumulative Remedies. No failure or delay by the Holder in exercising any right, power, or privilege under this Note shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. All rights and remedies of the Holder hereunder are cumulative and are in addition to any other rights and remedies available at law, in equity, or otherwise.
15.4 Successors and Assigns. This Note shall be binding upon and inure to the benefit of the Maker and the Holder and their respective successors and permitted assigns in accordance with Section 11. Nothing in this Note shall be construed to confer upon any other person or entity any right, benefit, or remedy of any nature whatsoever under or by reason of this Note, except as expressly provided in Section 5 with respect to the holders of Senior Indebtedness.
15.5 Headings. The section and subsection headings contained in this Note are for convenience of reference only and shall not affect in any way the meaning, construction, or interpretation of this Note.
15.6 Counterparts. This Note may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Note by facsimile, portable document format (.pdf), or other electronic transmission (including via Brightwater Software or similar platform) shall be effective as delivery of an original executed counterpart of this Note, and each party hereto agrees that it will not raise the use of electronic signatures or electronic delivery as a defense to the enforcement of this Note.
15.7 Currency. All amounts expressed in this Note, whether as principal, interest, fees, costs, expenses, or otherwise, are denominated in, and shall be payable in, United States Dollars. All references to "$" or "Dollars" in this Note refer to the lawful currency of the United States of America.
15.8 Tax Matters.
(a) Treatment as Indebtedness. The parties intend that this Note be treated as indebtedness for United States federal income tax purposes, and the Maker and the Holder each agree to report the obligations hereunder consistently as indebtedness on all applicable tax returns, unless otherwise required by a final determination within the meaning of Section 1313(a) of the Internal Revenue Code of 1986, as amended (the "Code").
(b) Withholding Documentation. The Maker shall furnish to the Holder, upon request, a properly completed and executed Internal Revenue Service Form W-8BEN-E (or any successor form thereto) or such other applicable withholding documentation as may be reasonably requested by the Holder in connection with any payment made under this Note, in order to establish an exemption from or reduction of withholding tax under any applicable income tax treaty or provision of the Code.
(c) No Taxable Exchange. The parties acknowledge and agree that the amendment and restatement of the Original Note effected by this Note is intended to be treated, for United States federal income tax purposes, as a modification of the Original Note (rather than a retirement and reissuance of the Original Note or a taxable exchange thereof) within the meaning of Treasury Regulation Section 1.1001-3. The parties have determined, after analysis of the relevant factors set forth in Treasury Regulation Section 1.1001-3(e), including the reduction in the interest rate, the extension of the maturity date, and the confirmation of the subordination provisions, that the modifications effected by this Note do not constitute a "significant modification" within the meaning of such regulation that would give rise to a deemed exchange of the Original Note for a new note. Each party agrees to file its tax returns consistently with this characterization unless otherwise required by a final determination within the meaning of Section 1313(a) of the Code.
15.9 Waiver of Presentment. The Maker hereby waives presentment, demand for payment, notice of nonpayment, protest, and notice of protest with respect to this Note, and all other notices and demands in connection with the delivery, acceptance, performance, default, or enforcement of this Note, to the fullest extent permitted by applicable law.
15.10 No Set-Off. All payments by the Maker under this Note shall be made without set-off, counterclaim, deduction, or withholding of any kind, except as required by applicable law. If the Maker is required by applicable law to withhold or deduct any amount from any payment under this Note, the Maker shall make such withholding or deduction and shall timely remit the full amount withheld or deducted to the applicable governmental authority, and the amount payable to the Holder shall not be increased to account for such withholding or deduction.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Maker has duly executed and delivered this Amended and Restated Intercompany Promissory Note as of the date first written above.
MAKER:
THALASSA AMERICAS INC.
By: ________
Name: Marcus Hale
Title: President
Date: May 25, 2023
ACKNOWLEDGED AND AGREED — HOLDER:
THALASSA SHIPPING & LOGISTICS SOCIÉTÉ ANONYME
By: ________
Name: Georgios Andreadis
Title: Chief Executive Officer
Date: May 25, 2023
ACKNOWLEDGMENT OF SUBORDINATION
The undersigned, in its capacity as administrative agent under the Senior Secured Credit Agreement (as defined in the foregoing Amended and Restated Intercompany Promissory Note), hereby acknowledges receipt of the foregoing Amended and Restated Intercompany Promissory Note, dated as of May 25, 2023, in the principal amount of $76,400,000.00, issued by Thalassa Americas Inc. in favor of Thalassa Shipping & Logistics Société Anonyme, and hereby acknowledges and consents to the terms thereof, including, without limitation, the subordination provisions set forth in Section 5 of such Note.
NORDBANK INTERNATIONAL AG, as Administrative Agent under the Senior Secured Credit Agreement
By: ________
Name: Henrik Lüdemann
Title: Managing Director, Shipping & Offshore Finance
Date: May 25, 2023
The undersigned, in its capacity as holder of the New Second-Lien Notes (as defined in the foregoing Amended and Restated Intercompany Promissory Note), hereby acknowledges receipt of the foregoing Amended and Restated Intercompany Promissory Note, dated as of May 25, 2023, in the principal amount of $76,400,000.00, issued by Thalassa Americas Inc. in favor of Thalassa Shipping & Logistics Société Anonyme, and hereby acknowledges and consents to the terms thereof, including, without limitation, the subordination provisions set forth in Section 5 of such Note.
DRALVECEN MEZZANINE CAPITAL LLC
By: ________
Name: Rebecca Marsh
Title: Senior Partner
Date: May 25, 2023
ANNEX A
DEFINITIONS
As used in this Amended and Restated Intercompany Promissory Note, the following terms shall have the meanings ascribed to them below. Capitalized terms used but not defined in this Annex A shall have the meanings ascribed to such terms elsewhere in this Note.
"Amendment No. 1" means Amendment No. 1 to the Senior Secured Credit Agreement, dated as of May 15, 2023, among the Holder (as borrower), the Maker (as co-borrower with respect to the U.S. Tranche), Nordbank (as administrative agent and collateral agent), and the Senior Secured Lenders, which amendment, among other things, extended the maturity date of the Senior Secured Credit Agreement to June 15, 2027 and modified certain financial covenants and mandatory prepayment provisions contained therein.
"Amended and Restated Intercreditor Agreement" means that certain Amended and Restated Intercreditor Agreement, dated as of May 15, 2023, by and between Nordbank International AG (in its capacity as first-lien agent for the Senior Secured Lenders) and Dralvecen Mezzanine Capital LLC (in its capacity as second-lien holder), which agreement sets forth, among other things, the relative priorities, rights, and remedies of the holders of the first-lien Senior Indebtedness under the Senior Secured Credit Agreement and the holders of the second-lien Senior Indebtedness under the New Second-Lien Notes.
"Applicable Rate" has the meaning set forth in Section 2.1.
"Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., as amended from time to time.
"blockage Notice" has the meaning set forth in Section 5.2.
"Dralvecen" means Dralvecen Mezzanine Capital LLC, a Delaware limited liability company, in its capacity as purchaser and holder of the New Second-Lien Notes.
"Business Day" means any day other than a Saturday, Sunday, or other day on which commercial banks in the City of New York, New York, the City of Houston, Texas, or the City of Piraeus, Greece, are authorized or required by law to remain closed. For the avoidance of doubt, any day on which the Federal Reserve Bank of New York is closed shall not be a Business Day.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Default Rate" has the meaning set forth in Section 2.3.
"Event of Default" has the meaning set forth in Section 7.1.
"Holder" or "Payee" means Thalassa Shipping & Logistics Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic (Greece), registered with the Athens General Commercial Registry, with its registered office at 42 Akti Miaouli, Piraeus 18538, Greece, Greek Tax Identification Number (AFM) 998214763, and its successors and permitted assigns.
"Interest Payment Date" has the meaning set forth in Section 2.2.
"Maker" means Thalassa Americas Inc., a corporation organized under the laws of the State of Delaware, with its principal office at 1400 McKinney Street, Suite 2200, Houston, Texas 77010, Federal Employer Identification Number 84-3291057, and its successors and permitted assigns.
"Maturity Date" means December 31, 2028, or such earlier date on which the Subordinated Obligations become due and payable in full by reason of acceleration pursuant to Section 7.2 or otherwise in accordance with the terms of this Note.
"New Second-Lien Note Purchase Agreement" means that certain New Second-Lien Note Purchase Agreement, dated as of May 18, 2023, between the Holder and Dralvecen, as the same may be amended, restated, supplemented, or otherwise modified from time to time, governing the issuance and purchase of the New Second-Lien Notes.
"New Second-Lien Notes" means the $60,000,000 in aggregate principal amount of 10.0% PIK Second-Lien Notes due June 2028, issued by the Holder pursuant to the New Second-Lien Notes Indenture.
"New Second-Lien Notes Indenture" means that certain New Second-Lien Notes Indenture, dated as of May 18, 2023, between the Holder and Dralvecen, as the same may be amended, restated, supplemented, or otherwise modified from time to time, governing the terms and conditions of the New Second-Lien Notes.
"Nordbank" means Nordbank International AG, a banking institution organized under the laws of the Federal Republic of Germany, acting in its capacity as administrative agent and collateral agent under the Senior Secured Credit Agreement.
"Note" means this Amended and Restated Intercompany Promissory Note, dated as of May 25, 2023, in the principal amount of $76,400,000.00, issued by the Maker to the Holder, as the same may be amended, modified, or supplemented from time to time in accordance with Section 10.
"Original Note" means that certain Subordinated Intercompany Promissory Note, dated as of June 15, 2019, in the original principal amount of $76,400,000.00, issued by the Maker to the Holder, bearing interest at a rate of 5.0% per annum, which is amended, restated, superseded, and replaced in its entirety by this Note.
"Payment blockage Period" has the meaning set forth in Section 5.2.
"Principal Amount" means Seventy-Six Million Four Hundred Thousand Dollars ($76,400,000.00), as such amount may be reduced from time to time by payments of principal made in accordance with this Note.
"RSA" means that certain Restructuring Support Agreement, dated as of March 14, 2023, among, inter alia, the Holder, the Maker, Nordbank, the consenting senior secured lenders, Dralvecen, and KFO Holdings Société Anonyme, as the same may be amended, supplemented, or otherwise modified from time to time.
"RSA Effective Date" means June 30, 2023, the date on which the closing of the transactions contemplated by the RSA occurred.