JOINDER AGREEMENT
Joinder to Restructuring Support Agreement dated March 14, 2023
Dated as of March 14, 2023
This JOINDER AGREEMENT (this "Joinder Agreement") is made and entered into as of March 14, 2023, by and among the undersigned lenders (each, a "Joining Lender" and, upon execution and delivery hereof, a "Consenting Lender"), pursuant to that certain Restructuring Support Agreement, dated as of March 14, 2023 (as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms, the "RSA"), by and among Thalassa Shipping & Logistics Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic ("TSL" or the "Borrower"), Thalassa Americas Inc., a Delaware corporation ("TAI" or the "Co-Borrower"), Nordbank International AG, an Aktiengesellschaft organized under the laws of Switzerland, in its capacity as Administrative Agent and Collateral Agent under the Senior Secured Credit Agreement (as defined below) (in such capacity, the "Agent"), Dralvecen Mezzanine Capital LLC, a Delaware limited liability company ("BMC"), and KFO Holdings Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic ("KFO").
RECITALS
WHEREAS:
A. TSL, as Borrower, TAI, as Co-Borrower (with respect to the U.S. Tranche (as defined therein)), Nordbank International AG, as Administrative Agent and Collateral Agent, and the lenders from time to time party thereto (collectively, the "Lenders") are parties to that certain Senior Secured Credit Agreement, dated as of June 15, 2019 (as amended, restated, supplemented, or otherwise modified prior to the date hereof, the "Credit Agreement"), providing for aggregate commitments in the original principal amount of Six Hundred Eighty-Five Million Dollars ($685,000,000), comprising: (i) a Term Loan A facility in the original principal amount of Four Hundred Million Dollars ($400,000,000), which amortizes through quarterly principal payments of Ten Million Dollars ($10,000,000) (the "TLA"); (ii) a Revolving Credit Facility in the aggregate committed amount of Two Hundred Million Dollars ($200,000,000), of which One Hundred Eighty-Five Million Dollars ($185,000,000) was drawn and outstanding as of September 30, 2022 (the "Revolver"); and (iii) a U.S. Tranche (Term Loan B) in the original principal amount of Eighty-Five Million Dollars ($85,000,000), which is non-amortizing with a bullet maturity (the "TLB"). As of September 30, 2022, the aggregate outstanding principal balance under the Credit Agreement was Five Hundred Forty Million Dollars ($540,000,000), consisting of Two Hundred Seventy Million Dollars ($270,000,000) outstanding under the TLA, One Hundred Eighty-Five Million Dollars ($185,000,000) outstanding under the Revolver, and Eighty-Five Million Dollars ($85,000,000) outstanding under the TLB. The obligations under the Credit Agreement bear interest at a rate per annum equal to SOFR plus 375 basis points (with a default rate of an additional 200 basis points per annum above the otherwise applicable rate). The original stated maturity date of the Credit Agreement is June 15, 2024. The TLA bears CUSIP number 87265BAA7. The obligations under the Credit Agreement are secured by first-priority liens on, among other things, thirty-eight (38) dry-bulk carriers, twelve (12) container vessels, the Houston terminal lease, all accounts receivable of the Borrower and its subsidiaries, and the equity interests in TAI and fourteen (14) vessel-owning special purpose vehicles;
B. The Borrower has experienced certain financial difficulties, and in connection therewith, the following Events of Default (as defined in the Credit Agreement) have occurred and are continuing: (i) a breach of the Minimum Liquidity Covenant set forth in Section 7.11(a) of the Credit Agreement, which occurred on September 15, 2022, when the Borrower's consolidated unrestricted cash and cash equivalents fell to Twenty-Seven Million Three Hundred Thousand Dollars ($27,300,000), representing a shortfall of Twelve Million Seven Hundred Thousand Dollars ($12,700,000) below the required minimum of Forty Million Dollars ($40,000,000); (ii) a breach of the Maximum Net Leverage Ratio covenant set forth in Section 7.11(b) of the Credit Agreement, as the Borrower's Net Leverage Ratio was 7.82x as of September 30, 2022, calculated as Net Debt of Seven Hundred Seventy Million Nine Hundred Thousand Dollars ($770,900,000) divided by last-twelve-months ("LTM") EBITDA of Ninety-Eight Million Six Hundred Thousand Dollars ($98,600,000), in excess of the maximum permitted ratio of 5.50x; and (iii) a breach of the Minimum Interest Coverage Ratio covenant set forth in Section 7.11(c) of the Credit Agreement, as the Borrower's Interest Coverage Ratio was 1.74x as of September 30, 2022, calculated as LTM EBITDA of Ninety-Eight Million Six Hundred Thousand Dollars ($98,600,000) divided by LTM Interest Expense of Fifty-Six Million Seven Hundred Thousand Dollars ($56,700,000), below the required minimum ratio of 2.50x. In connection with such Events of Default, the Borrower, the Co-Borrower, the Agent, and the Lenders entered into that certain Forbearance Agreement, dated as of October 10, 2022 (the "Original Forbearance Agreement"), providing for a ninety (90)-day standstill period through January 8, 2023, which was subsequently extended pursuant to the First Amendment to Forbearance Agreement, dated as of January 8, 2023 (extending the forbearance period through March 8, 2023), and the Second Amendment to Forbearance Agreement, dated as of March 8, 2023 (extending the forbearance period through April 7, 2023) (the Original Forbearance Agreement, as so amended, the "Forbearance Agreement");
C. In light of the foregoing Events of Default and the ongoing forbearance discussions, the Borrower, the Co-Borrower, the Agent, BMC, and KFO executed the RSA on March 14, 2023, setting forth the agreed-upon restructuring transactions to be consummated in accordance with the terms and conditions thereof (the "Restructuring Transactions"), which include, among other things, the following key terms:
(i) Senior Secured Facility Amendment: The stated maturity date of the Credit Agreement shall be extended from June 15, 2024 to June 15, 2027; Seventy-Five Million Dollars ($75,000,000) of outstanding TLA principal shall be converted from cash-pay to payment-in-kind ("PIK") interest; the Revolver commitment shall be reduced from Two Hundred Million Dollars ($200,000,000) to One Hundred Fifty Million Dollars ($150,000,000); the financial covenants shall be reset such that the Maximum Net Leverage Ratio shall be set at 7.00x, stepping down to 5.50x by the fourth quarter of 2025, the Minimum Liquidity covenant shall be reduced from Forty Million Dollars ($40,000,000) to Thirty Million Dollars ($30,000,000), and the Minimum Interest Coverage Ratio shall be waived through the fourth quarter of 2023; an amendment fee equal to 1.00% of the aggregate outstanding principal amount ($540,000,000 × 1.00% = $5,400,000) shall be payable in kind; and default interest shall be waived retroactively from the date of the respective covenant breaches (collectively, the "Amendment");
(ii) Mezzanine Notes Exchange: One Hundred Twelve Million Three Hundred Thousand Dollars ($112,300,000) of outstanding mezzanine notes held by BMC shall be exchanged for (a) Sixty Million Dollars ($60,000,000) in aggregate principal amount of new second-lien notes bearing interest at 10.0% per annum, payable in kind, with a maturity date of June 2028, and (b) equity interests representing fifteen percent (15%) of the outstanding equity of TSL on a fully diluted basis;
(iii) Equity Contribution: KFO Holdings shall contribute Thirty-Five Million Euros (€35,000,000) (approximately Thirty-Eight Million Two Hundred Thousand Dollars ($38,200,000) at a conversion rate of €1.00 = $1.0914) in new equity capital to TSL;
(iv) Vessel Dispositions: The Borrower shall sell six (6) older dry-bulk carriers within twelve (12) months of the RSA Effective Date (as defined herein) for estimated aggregate proceeds of Seventy-Two Million Dollars ($72,000,000), with net proceeds to be applied as mandatory prepayments of the TLA;
(v) Intercompany Note Amendment: The Seventy-Six Million Four Hundred Thousand Dollar ($76,400,000) intercompany note from TAI to TSL shall be subordinated and its maturity extended to December 2028, with the interest rate reduced from 5.0% per annum to 2.0% per annum;
(vi) Unsecured Notes: The unsecured notes issued by the Borrower shall remain unimpaired, and the missed coupon payment of Two Million Sixty-Two Thousand Five Hundred Dollars ($2,062,500) due on December 1, 2022 shall be paid in full at the closing of the Restructuring Transactions; and
(vii) Trade Creditors: All trade creditors of the Borrower and its subsidiaries shall be paid in full in the ordinary course of business.
The RSA provides for an outside date of June 30, 2023 (the "Outside Date"), by which date all conditions to the closing of the Restructuring Transactions must be satisfied or waived; and
D. Section 3.02(a) of the RSA requires each Lender under the Credit Agreement that wishes to become a "Consenting Lender" (as defined in the RSA) to execute and deliver a joinder agreement substantially in the form hereof (each such joinder agreement, a "Joinder Agreement") to the Agent and the Borrower, and, upon such execution and delivery, each such Lender shall become a party to the RSA and shall be bound by the terms and conditions thereof as a Consenting Lender with the rights, benefits, and obligations attendant thereto.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. As used in this Joinder Agreement, the following terms shall have the meanings set forth below:
"Agent" means Nordbank International AG, in its capacity as Administrative Agent and Collateral Agent under the Credit Agreement.
"Amendment" means Amendment No. 1 to the Senior Secured Credit Agreement to be entered into among the Borrower, the Co-Borrower, the Agent, and the Lenders, implementing the restructuring terms set forth in the RSA and described in Recital C hereof, substantially in the form attached as Exhibit B to the RSA.
"Borrower" means Thalassa Shipping & Logistics Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic.
"Co-Borrower" means Thalassa Americas Inc., a Delaware corporation.
"Commitment" means, with respect to each Consenting Lender, the aggregate principal amount of loans and/or commitments (including, without limitation, under the TLA, the Revolver, and/or the TLB, as applicable) held by such Consenting Lender under the Credit Agreement as of the date hereof, as set forth opposite such Consenting Lender's name on its respective signature page hereto and on Schedule A attached hereto.
"Consenting Lender" means any Lender under the Credit Agreement that has executed and delivered a Joinder Agreement to the RSA in accordance with Section 3.02(a) thereof and the terms hereof.
"Credit Agreement" has the meaning set forth in Recital A hereof.
"Effective Date" means the date on which all conditions precedent to the closing of the Restructuring Transactions as set forth in the RSA have been satisfied or waived in accordance with the terms thereof, and the Restructuring Transactions become effective (such date, the "RSA Effective Date").
"Forbearance Agreement" has the meaning set forth in Recital B hereof.
"Joinder Agreement" has the meaning set forth in Recital D hereof.
"Outside Date" means June 30, 2023, as such date may be extended in accordance with the terms of the RSA.
"Required Consenting Lenders" has the meaning ascribed to such term in Section 1.01 of the RSA.
"Restructuring Transactions" has the meaning set forth in Recital C hereof.
"RSA" has the meaning set forth in the preamble hereof.
Section 1.2 Incorporation by Reference. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the RSA. To the extent that any term defined herein is also defined in the RSA, the definition set forth herein shall control solely for purposes of this Joinder Agreement.
ARTICLE 2
JOINDER AND AGREEMENT
Section 2.1 Joinder. Each undersigned Lender (each, a "Joining Lender") hereby irrevocably and unconditionally joins the RSA as a Consenting Lender and agrees to be bound by all of the terms, conditions, covenants, obligations, and agreements of a Consenting Lender thereunder, in each case as if such Joining Lender had been an original signatory to the RSA on the date thereof. Each Consenting Lender hereby acknowledges and confirms that it has received a complete copy of the RSA (including all exhibits and schedules thereto) and has had the opportunity to review the same with the advice of its own legal and financial advisors. The joinder effected by this Section 2.1 shall be effective immediately upon execution and delivery of this Joinder Agreement to the Agent and the Borrower in accordance with Section 3.02(a) of the RSA.
Section 2.2 Agreement to Support the Restructuring. By executing and delivering this Joinder Agreement, each Consenting Lender hereby covenants and agrees, from and after the date hereof until the termination of this Joinder Agreement in accordance with Article 4 hereof, as follows:
(a) Support of Restructuring Transactions. Each Consenting Lender shall support and take all commercially reasonable actions necessary or reasonably requested by the Borrower, the Co-Borrower, or the Agent to facilitate the timely consummation of the Restructuring Transactions contemplated by the RSA, including, without limitation, the execution and delivery of the Amendment, and the satisfaction of all conditions precedent to the RSA Effective Date;
(b) Affirmative Voting Obligation. Each Consenting Lender shall timely vote in favor of, consent to, and not object to the Amendment and all ancillary agreements, instruments, and documents contemplated by the RSA and necessary or desirable to implement the Restructuring Transactions, and shall not take, or direct the Agent to take, any action that is inconsistent with the Amendment or the Restructuring Transactions or that would reasonably be expected to prevent, delay, or impede the consummation thereof;
(c) Negative Covenant — No Alternative Transactions. Each Consenting Lender shall not, directly or indirectly, (i) seek, solicit, propose, support, encourage, or vote for any alternative restructuring proposal, plan, or transaction, or any amendment, modification, or supplement to the Credit Agreement or any other loan document, that is inconsistent with, or that would frustrate or delay the consummation of, the Restructuring Transactions as contemplated by the RSA, or (ii) engage in any discussions or negotiations with any person or entity (other than the parties to the RSA and their respective advisors) regarding any alternative restructuring proposal, plan, or transaction;
(d) Negative Covenant — No Enforcement Actions. Each Consenting Lender shall not, directly or indirectly, exercise, or direct or instruct the Agent to exercise, any right or remedy available under the Credit Agreement, the Forbearance Agreement (as amended), any other loan document, or applicable law with respect to the acceleration of the obligations under the Credit Agreement, the enforcement of any lien or security interest securing such obligations, or the commencement, continuation, or support of any enforcement, collection, or insolvency proceeding, in each case to the extent that such action is inconsistent with the terms of the RSA; provided, however, that nothing in this Section 2.2(d) shall be construed to prohibit any Consenting Lender from (i) appearing as a party-in-interest in any court proceeding relating to the Restructuring Transactions for the purpose of protecting or preserving its rights under this Joinder Agreement, the RSA, or the Credit Agreement, or (ii) taking any action required by applicable law; and
(e) Transfer Restrictions. Each Consenting Lender shall not sell, assign, transfer, pledge, hypothecate, participate, or otherwise dispose of (each, a "Transfer") any of its loans, commitments, or claims under the Credit Agreement, or any rights or interests therein, except to a transferee (a "Permitted Transferee") that, prior to the effectiveness of any such Transfer, has duly executed and delivered (i) a joinder to this Joinder Agreement substantially in the form attached hereto as Exhibit A (a "Transfer Joinder"), and (ii) a joinder to the RSA, in each case to the Agent and the Borrower. Any purported Transfer that does not comply with this Section 2.2(e) shall be null and void ab initio, and neither the Agent nor the Borrower shall be required to recognize any such Transfer on their respective books and records or otherwise.
Section 2.3 Acknowledgment of RSA Terms. Each Consenting Lender hereby expressly acknowledges and agrees to the following key economic terms of the Amendment, as more fully described in the RSA:
(a) the extension of the stated maturity date of the Credit Agreement from June 15, 2024 to June 15, 2027;
(b) the conversion of Seventy-Five Million Dollars ($75,000,000) of outstanding TLA principal from cash-pay to payment-in-kind interest;
(c) the reduction of the Revolver commitment from Two Hundred Million Dollars ($200,000,000) to One Hundred Fifty Million Dollars ($150,000,000);
(d) the resetting of the financial covenants under the Credit Agreement, including: (i) the Maximum Net Leverage Ratio set at 7.00x, stepping down to 6.25x by the second quarter of 2025 and to 5.50x by the fourth quarter of 2025; (ii) the Minimum Liquidity covenant reduced from Forty Million Dollars ($40,000,000) to Thirty Million Dollars ($30,000,000); and (iii) the waiver of the Minimum Interest Coverage Ratio covenant through the fourth quarter of 2023;
(e) the payment of an amendment fee equal to 1.00% of the aggregate outstanding principal amount under the Credit Agreement (being Five Hundred Forty Million Dollars ($540,000,000) × 1.00% = Five Million Four Hundred Thousand Dollars ($5,400,000)), such fee to be payable in kind by capitalizing such amount and adding it to the outstanding principal balance of the TLA on a pro rata basis among the Lenders; and
(f) the retroactive waiver of all default interest that has accrued from and after the date of each respective covenant breach described in Recital B hereof through the RSA Effective Date.
Each Consenting Lender confirms that it has independently evaluated the merits of the Restructuring Transactions and has not relied on any representation or warranty of any other party (other than the representations and warranties expressly set forth in the RSA) in making its decision to execute and deliver this Joinder Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Each Consenting Lender, severally and not jointly, hereby represents and warrants to the Borrower, the Co-Borrower, and the Agent, as of the date hereof and as of the RSA Effective Date, as follows:
Section 3.1 Due Organization and Authority. Such Consenting Lender is duly organized, validly existing, and in good standing (to the extent such concept is applicable in its jurisdiction of organization) under the laws of the jurisdiction of its organization. Such Consenting Lender has all requisite corporate, partnership, limited liability company, or other organizational power and authority to execute, deliver, and perform its obligations under this Joinder Agreement and to consummate the transactions contemplated hereby.
Section 3.2 Due Authorization. The execution, delivery, and performance by such Consenting Lender of this Joinder Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate, partnership, limited liability company, or other organizational action on the part of such Consenting Lender, and no further action, consent, or approval of any person or entity (including any governing body, board of directors, advisory committee, limited partner, member, or shareholder of such Consenting Lender) is required in connection therewith.
Section 3.3 Binding Obligation. This Joinder Agreement has been duly executed and delivered by such Consenting Lender and constitutes the legal, valid, and binding obligation of such Consenting Lender, enforceable against such Consenting Lender in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship, or similar laws affecting creditors' rights generally, and (b) general principles of equity, whether considered in a proceeding in equity or at law (including concepts of materiality, reasonableness, good faith, and fair dealing).
Section 3.4 No Conflicts. The execution, delivery, and performance by such Consenting Lender of this Joinder Agreement, and the consummation of the transactions contemplated hereby, do not and will not (a) violate any provision of the organizational documents of such Consenting Lender, (b) violate, conflict with, result in a breach of, or constitute (with or without notice or lapse of time, or both) a default under any law, statute, regulation, rule, order, judgment, decree, writ, injunction, or determination of any governmental authority or any contract, agreement, instrument, or other obligation to which such Consenting Lender is a party or by which it or any of its assets are bound, or (c) require the consent, approval, authorization, or order of, or filing, registration, or qualification with, any governmental authority or other person or entity, except for such consents, approvals, authorizations, orders, filings, registrations, or qualifications as have been obtained or made and are in full force and effect.
Section 3.5 Ownership of Claims. As of the date hereof, such Consenting Lender is (or, in the case of an investment manager or advisor executing this Joinder Agreement on behalf of one or more managed funds or accounts, has the power, authority, and right to act on behalf of the beneficial owner(s) of) the legal and beneficial owner of the aggregate principal amount of loans and/or commitments under the Credit Agreement set forth opposite its name on its respective signature page hereto (its "Commitment"), free and clear of any lien, charge, claim, encumbrance, security interest, or other adverse claim of any kind, other than liens granted under the Credit Agreement and the related loan documents. Such Consenting Lender has full power and authority to vote, consent to, and agree to the matters set forth in this Joinder Agreement with respect to its Commitment, and there are no restrictions or limitations on such Consenting Lender's right to Transfer its Commitment other than as set forth in the Credit Agreement and this Joinder Agreement.
ARTICLE 4
TERMINATION
Section 4.1 Termination Events. This Joinder Agreement, and all obligations of the Consenting Lenders hereunder (other than obligations that by their express terms survive termination), shall automatically terminate, without the requirement of any further action by any party, upon the earliest to occur of the following events:
(a) the RSA Effective Date, at which point the obligations of the Consenting Lenders hereunder shall be deemed to have been fully performed and shall be superseded by the terms and conditions of the Amendment and the other definitive documentation entered into in connection with the Restructuring Transactions;
(b) the termination of the RSA in accordance with its terms, including pursuant to Section 8.01 thereof, whether by the Borrower, the Required Consenting Lenders, or otherwise;
(c) 11:59 p.m. (Eastern Time) on the Outside Date (being June 30, 2023, as the same may be extended in accordance with the terms of the RSA), if the RSA Effective Date has not occurred by such date; and
(d) the mutual written agreement of the Required Consenting Lenders and the Borrower to terminate this Joinder Agreement, delivered to the Agent in accordance with Section 5.1 hereof.
Section 4.2 Effect of Termination. Upon termination of this Joinder Agreement pursuant to Section 4.1, (a) all obligations of the Consenting Lenders hereunder shall be of no further force or effect, (b) all rights, remedies, and claims of each Consenting Lender under the Credit Agreement, the Forbearance Agreement, the other loan documents, and applicable law shall be fully restored and preserved as if this Joinder Agreement had never been entered into, and (c) each Consenting Lender shall be free to pursue any and all remedies available to it under the Credit Agreement, the loan documents, and applicable law, including, without limitation, the exercise of acceleration rights, enforcement of liens, and commencement of judicial or other proceedings; provided, however, that such termination shall not relieve any party of liability for any willful breach of this Joinder Agreement occurring prior to the date of such termination, and the provisions of Article 3 (solely with respect to representations and warranties made as of the date hereof), this Section 4.2, and Article 5 shall survive any such termination.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Notices. All notices, requests, demands, consents, instructions, and other communications required or permitted to be given under this Joinder Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) when sent by confirmed electronic mail (provided that a copy is contemporaneously sent by another method specified herein), (c) three (3) business days after being sent by registered or certified mail (return receipt requested, postage prepaid), or (d) one (1) business day after being sent via a nationally recognized overnight courier service (with proof of delivery), in each case addressed as follows:
If to any Consenting Lender: At the address set forth on the respective signature page of such Consenting Lender hereto (or at such other address as such Consenting Lender may designate by written notice to the other parties hereto in accordance with this Section 5.1).
If to the Borrower:
Thalassa Shipping & Logistics Société Anonyme 42 Akti Miaouli Piraeus 18538, Greece
Attention: Georgios Andreadis, Chief Executive Officer, and Irini Dalakoura, Chief Financial Officer
Email: gandreadis@thalassasl.gr; idalakoura@thalassasl.gr
If to the Co-Borrower:
Thalassa Americas Inc. 1400 McKinney Street, Suite 2200 Houston, TX 77010
Attention: Marcus Hale, President, and Diana Restrepo, Vice President Finance
Email: mhale@thalassa-americas.com; drestrepo@thalassa-americas.com
With a copy (which shall not constitute notice) to Debtor's Counsel:
Calderwood & Harkness LLP 780 Third Avenue New York, NY 10017
Attention: Nathaniel Bower, Esq.
Email: nbower@calderwoodharkness.com
If to the Agent:
Nordbank International AG Bahnhofstrasse 78 8001 Zürich, Switzerland
Attention: Henrik Lüdemann, Managing Director, Shipping & Offshore Finance
Email: h.ludemann@nordbankinternational.ch
With a copy (which shall not constitute notice) to Counsel for the Ad Hoc Group:
Whitfield, Crane & Burgess LLP 51 West 52nd Street, 38th Floor New York, NY 10019
Attention: Graham Whitfield III, Esq.
Email: gwhitfield@wcbllp.com
Any party hereto may change its address for notices by giving written notice of such change to the other parties in the manner specified above.
Section 5.2 Governing Law. This Joinder Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to conflict-of-law principles that would result in the application of the laws of any other jurisdiction (other than Section 5-1401 of the New York General Obligations Law, which shall apply).
Section 5.3 Jurisdiction and Venue. Each party hereto irrevocably and unconditionally (a) submits to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, City of New York, State of New York, and any appellate court thereof, in any action, suit, or proceeding arising out of or relating to this Joinder Agreement, (b) agrees that all claims in respect of any such action, suit, or proceeding shall be heard and determined exclusively in such courts, (c) waives, to the fullest extent permitted by law, 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 (d) waives any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum. Each party 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. Notwithstanding the foregoing, nothing in this Section 5.3 shall limit the rights of any party hereto with respect to any proceedings before the United States Bankruptcy Court for the Southern District of Texas (Houston Division), should a petition under Chapter 11 of Title 11 of the United States Code be filed by or against TAI or any of its affiliates.
Section 5.4 Amendments and Waivers. No amendment, modification, supplement, or waiver of any provision of this Joinder Agreement, and no consent to any departure by any party herefrom, shall be effective unless the same shall be in writing and signed by the Borrower, the Agent, and the Required Consenting Lenders (as defined in the RSA), and then such amendment, modification, supplement, waiver, or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure or delay by any party hereto in exercising any right, power, or privilege hereunder 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.
Section 5.5 Successors and Assigns. This Joinder Agreement shall be binding upon and shall inure to the benefit of each Consenting Lender and its respective successors and permitted assigns. No Consenting Lender may assign or otherwise Transfer any of its rights or obligations hereunder except in accordance with Section 2.2(e) hereof to a Permitted Transferee that has duly executed and delivered a Transfer Joinder to both this Joinder Agreement and the RSA. Any attempted assignment or Transfer in violation of this Section 5.5 shall be null and void.
Section 5.6 Severability. If any provision of this Joinder Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Joinder Agreement, and this Joinder Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein; provided, however, that the parties shall negotiate in good faith to replace such invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, as closely as possible, achieves the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.
Section 5.7 Counterparts. This Joinder Agreement 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 signature page of this Joinder Agreement by facsimile transmission or electronic transmission in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof.
Section 5.8 Entire Agreement. This Joinder Agreement, together with the RSA and all exhibits, schedules, annexes, and other documents and instruments referenced therein or delivered in connection therewith, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, representations, warranties, commitments, offers, and undertakings, whether oral or written, among the parties hereto with respect thereto.
Section 5.9 Headings. The article and section headings contained in this Joinder Agreement are inserted for convenience of reference only and shall not affect in any way the meaning, construction, or interpretation of any provision of this Joinder Agreement.
Section 5.10 No Third-Party Beneficiaries. Except as expressly provided in the RSA, nothing in this Joinder Agreement, express or implied, is intended to or shall confer upon any person or entity other than the parties hereto and their respective successors and permitted assigns any legal or equitable right, benefit, remedy, or claim under or by reason of this Joinder Agreement.
Section 5.11 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS JOINDER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature Pages Follow]
SIGNATURE PAGES TO JOINDER AGREEMENT
CONSENTING LENDERS
NORDBANK INTERNATIONAL AG (in its capacity as a Lender under the Credit Agreement)
An Aktiengesellschaft (AG) organized under the laws of Switzerland
Commitment Amount: $137,000,000
Address:
Bahnhofstrasse 78 8001 Zürich, Switzerland
By: ________
Name: Henrik Lüdemann
Title: Managing Director, Shipping & Offshore Finance
Date: March 14, 2023
AEGEAN CAPITAL BANK SA
A Société Anonyme organized under the laws of the Hellenic Republic
Commitment Amount: $110,000,000
Address:
14 Vasilissis Sofias Avenue Athens 10674, Greece
By: ________
Name: Nikolaos Ventouris
Title: Director
Date: March 14, 2023
HARBORSTONE BANK PLC
A Public Limited Company organized under the laws of England and Wales
Commitment Amount: $95,000,000
Address:
25 Fenchurch Street London EC3M 3BY, United Kingdom
By: ________
Name: Fiona Aldrich
Title: Managing Director
Date: March 14, 2023
PACIFICA TRADE FINANCE CORP.
A Corporation organized under the laws of the Republic of Singapore
Commitment Amount: $82,000,000
Address:
8 Marina Boulevard, #36-01 Marina Bay Financial Centre Singapore 018981
By: ________
Name: Wei Lin Tan
Title: Senior Vice President
Date: March 14, 2023
CONTINENTAL MARITIME LENDING GmbH
A Gesellschaft mit beschränkter Haftung organized under the laws of the Federal Republic of Germany
Commitment Amount: $72,000,000
Address:
Ballindamm 36 20095 Hamburg, Germany
By: ________
Name: Klaus Rheinfeld
Title: Director
Date: March 14, 2023
TRITON CREDIT PARTNERS LP
A Limited Partnership organized under the laws of the State of Delaware, United States of America
Commitment Amount: $68,000,000
Address:
399 Park Avenue, 14th Floor New York, NY 10022
By: ________
Name: David Sorokin
Title: Partner
Date: March 14, 2023
LAURENTIAN SHIPPING FUND II
An Investment Fund organized under the laws of the Province of Quebec, Canada
Commitment Amount: $55,000,000
Address:
1250 René-Lévesque Boulevard West, Suite 4100 Montreal, Quebec H3B 4W8, Canada
By: ________
Name: Marie-Claire Gagnon
Title: Portfolio Manager
Date: March 14, 2023
CASPIAN ASSET MANAGEMENT LTD.
A Limited Company organized under the laws of the United Arab Emirates (Dubai International Financial Centre)
Commitment Amount: $40,000,000
Address:
Gate Village, Building 4, Ostrander Holdings Dubai International Financial Centre P.O. Box 506700, Dubai, United Arab Emirates
By: ________
Name: Rashed Al-Khatib
Title: Head of Shipping
Date: March 14, 2023
PELAGOS INSTITUTIONAL CREDIT FUND
An Investment Fund organized under the laws of the Republic of Cyprus
Commitment Amount: $26,000,000
Address:
12 Griva Digeni Avenue, 4th Floor 3106 Limassol, Cyprus
By: ________
Name: Andreas Michailides
Title: Fund Manager
Date: March 14, 2023
AGGREGATE COMMITMENT VERIFICATION
The aggregate commitments of all Consenting Lenders executing this Joinder Agreement are as follows:
The foregoing aggregate Commitment of $685,000,000 represents 100% of the total commitments of the Lender syndicate under the Credit Agreement, thereby satisfying the threshold requirements under Section 3.02(b) of the RSA for the Required Consenting Lenders.
ACKNOWLEDGED AND AGREED
COUNTERPARTY SIGNATURES
The following parties hereby acknowledge and agree to this Joinder Agreement and confirm that the undersigned Consenting Lenders have been accepted as parties to the RSA:
NORDBANK INTERNATIONAL AG (in its capacity as Administrative Agent and Collateral Agent under the Credit Agreement)
By: ________
Name: Henrik Lüdemann
Title: Managing Director
Date: March 14, 2023