SECRETARY'S CERTIFICATE OF THALASSA AMERICAS INC.
June 30, 2023
Delivered to:
Nordbank International AG as Administrative Agent and Collateral Agent Bahnhofstrasse 78 8001 Zürich, Switzerland
and
Each of the Lenders party to the Senior Secured Credit Agreement (as defined below)
The undersigned, Elena M. Vassilakis, being the duly elected, qualified, and acting Secretary of Thalassa Americas Inc., a corporation organized and existing under the laws of the State of Delaware (hereinafter referred to as "TAI" or the "Company"), hereby certifies the following in connection with the closing, on this date, June 30, 2023, of the transactions contemplated by the RSA Transaction Documents (as defined below).
TAI is a wholly-owned subsidiary of Thalassa Shipping & Logistics Société Anonyme, a société anonyme organized and existing under the laws of the Hellenic Republic ("TSL"). The principal office of TAI is located at 1400 McKinney Street, Suite 2200, Houston, Texas 77010. The registered agent for service of process on TAI in the State of Delaware is Capitol Registered Agents LLC, located at 1209 Orange Street, Wilmington, Delaware 19801. The Employer Identification Number of TAI is 84-3291057.
This Secretary's Certificate is being delivered in connection with, and pursuant to the requirements of: (i) Amendment No. 1 to Senior Secured Credit Agreement dated May 15, 2023 ("Amendment No. 1"), among Thalassa Shipping & Logistics Société Anonyme, as Borrower, Thalassa Americas Inc., as Co-Borrower for the U.S. Tranche, Nordbank International AG, as Administrative Agent and Collateral Agent, and the Lenders party thereto (the "Senior Secured Credit Agreement," as amended by Amendment No. 1, the "Amended Credit Agreement"); (ii) the Restructuring Support Agreement dated March 14, 2023 (the "RSA"); and (iii) certain related transaction documents, including, without limitation, the Joinder Agreement, the Amended and Restated Intercompany Promissory Note, ancillary certificates, instruments, and other documents executed and delivered in connection therewith (collectively, together with Amendment No. 1 and the RSA, the "RSA Transaction Documents").
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the RSA or Amendment No. 1 to the Senior Secured Credit Agreement, as applicable.
The undersigned, in her capacity as Secretary of Thalassa Americas Inc., having reviewed the organizational records of the Company and being duly authorized to deliver this certificate, hereby certifies to the Administrative Agent, the Collateral Agent, and each of the Lenders party to the Senior Secured Credit Agreement as follows:
1. Certificate of Incorporation.
The undersigned hereby certifies that attached hereto as Exhibit A is a true, correct, and complete copy of the Certificate of Incorporation of Thalassa Americas Inc. as originally filed with the Secretary of State of the State of Delaware, together with all amendments and restatements thereof adopted and filed through the date hereof, which Certificate of Incorporation (as so amended and restated) is in full force and effect as of the date hereof. TAI is a C-Corporation organized under the General Corporation Law of the State of Delaware. Since the date of the most recent amendment reflected in the copy attached as Exhibit A, the Certificate of Incorporation has not been further amended, modified, restated, supplemented, or rescinded, and no action has been taken or authorized by the Board of Directors or the stockholder of TAI with respect to any further amendment, modification, restatement, or supplement thereof, and the Certificate of Incorporation remains in full force and effect as of the date hereof.
2. Bylaws.
The undersigned hereby certifies that attached hereto as Exhibit B is a true, correct, and complete copy of the Bylaws of Thalassa Americas Inc., together with all amendments thereto adopted through the date hereof, which Bylaws (as so amended) are in full force and effect as of the date hereof. Since the date of the most recent amendment reflected in the copy attached as Exhibit B, the Bylaws have not been further amended, modified, restated, supplemented, or rescinded, and no action has been taken or authorized by the Board of Directors or the stockholder of TAI with respect to any further amendment, modification, restatement, or supplement thereof, and the Bylaws remain in full force and effect as of the date hereof.
3. Board Resolutions.
The undersigned hereby certifies that attached hereto as Exhibit C is a true, correct, and complete copy of the resolutions (the "Resolutions") duly adopted by the Board of Directors of Thalassa Americas Inc. by unanimous written consent dated June 22, 2023, in accordance with Section 141(f) of the General Corporation Law of the State of Delaware and Article III of the Bylaws of the Company. The Resolutions were adopted by all of the members of the Board of Directors of TAI, and no meeting of the Board of Directors was required in connection therewith. The Resolutions authorize, among other things:
(a) the execution, delivery, and performance by TAI of Amendment No. 1 to the Senior Secured Credit Agreement dated May 15, 2023, and the consummation of the transactions contemplated thereby;
(b) the execution, delivery, and performance by TAI of the Amended and Restated Intercompany Promissory Note dated May 25, 2023, by and between TAI, as maker, and TSL, as payee, in the principal amount of $76,400,000, which Amended and Restated Intercompany Promissory Note, among other things, reduces the applicable interest rate from 5.0% per annum to 2.0% per annum and extends the maturity date from December 31, 2025 to December 31, 2028, on terms subordinated to the obligations under the Amended Credit Agreement;
(c) the execution, delivery, and performance by TAI of such other RSA Transaction Documents to which TAI is or may become a party, including, without limitation, the Joinder Agreement and any ancillary certificates, documents, instruments, and agreements required or contemplated thereunder;
(d) the authorization of each officer of TAI, including, without limitation, Marcus Hale (President), Diana Restrepo (Vice President, Finance), and Jonathan Kurtz (Vice President, Operations), acting individually and in his or her official capacity, to execute and deliver any and all documents, instruments, certificates, and agreements on behalf of the Company in connection with the RSA Transaction Documents and the transactions contemplated thereby, with such changes, modifications, and additions thereto as such officer shall approve, such approval to be conclusively evidenced by such officer's execution thereof; and
(e) the performance by TAI of all obligations arising under or in connection with the RSA Transaction Documents, and the taking of any and all actions as may be necessary, appropriate, or desirable to effectuate the intent and purposes of the foregoing Resolutions.
The Resolutions have not been amended, modified, rescinded, revoked, or superseded since the date of their adoption, and the Resolutions remain in full force and effect as of the date hereof. No other resolutions have been adopted by the Board of Directors of TAI, whether by unanimous written consent, at any meeting, or otherwise, that would in any way conflict with, modify, limit, restrict, or rescind the Resolutions or the authority granted thereunder.
4. Good Standing.
The undersigned hereby certifies that TAI is validly existing as a corporation and in good standing under the laws of the State of Delaware as of the date hereof. Attached hereto as Exhibit D is a certificate of good standing (or certificate of status) for Thalassa Americas Inc. issued by the Secretary of State of the State of Delaware, dated on or about June 28, 2023. The undersigned has no knowledge of any facts or circumstances that would have caused the good standing status of TAI to change since the date of issuance of such certificate of good standing. All franchise taxes required to be paid by TAI to the State of Delaware have been paid in full through the date hereof, and all annual reports and other filings required to be made with the Secretary of State of the State of Delaware have been duly filed.
5. Incumbency and Specimen Signatures.
The undersigned hereby certifies that the following persons are the duly elected or appointed, qualified, and acting officers of Thalassa Americas Inc. as of the date hereof, holding the respective offices set forth opposite their names below, and that the signatures set forth opposite their respective names below are their true, genuine, and authentic signatures:
Each of the above-named officers is duly authorized to execute and deliver, on behalf of TAI, any and all RSA Transaction Documents and any and all related certificates, instruments, agreements, and other documents contemplated thereby, in each case in accordance with the Resolutions. Without limiting the generality of the foregoing, the undersigned further certifies as follows:
(a) Marcus Hale, in his capacity as President of TAI, executed and delivered the Officer's Certificate of Thalassa Americas Inc. at the closing of the RSA transactions on this date, June 30, 2023; and
(b) Diana Restrepo, in her capacity as Vice President, Finance of TAI, executed and delivered the Solvency Certificate of Thalassa Americas Inc. at the closing of the RSA transactions on this date, June 30, 2023.
6. No Dissolution or Liquidation.
The undersigned hereby certifies that no proceedings have been instituted or are pending, nor, to the knowledge of the undersigned, have any proceedings been threatened, for the dissolution, liquidation, or winding up of Thalassa Americas Inc., whether voluntary or involuntary, under applicable state or federal law. No petition under Chapter 7 or Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code") has been filed by or against TAI, and no order for relief under the Bankruptcy Code has been entered with respect to TAI. The undersigned further certifies that the Chapter 11 contingency plan referenced in Section 8.4 of the RSA was not activated, and the out-of-court restructuring contemplated by the RSA has been completed without resort to bankruptcy proceedings. No receiver, trustee, custodian, or similar official has been appointed for TAI or for any substantial part of its property or assets.
7. No Conflict with Organizational Documents.
The undersigned hereby certifies that the execution, delivery, and performance by TAI of the RSA Transaction Documents and the consummation by TAI of the transactions contemplated thereby do not and will not (a) violate any provision of the Certificate of Incorporation of TAI, as amended to date, (b) violate any provision of the Bylaws of TAI, as amended to date, (c) conflict with, or result in a breach of or default under, any provision of the Certificate of Incorporation or Bylaws of TAI, or (d) result in the creation or imposition of any lien, charge, or encumbrance on any property or assets of TAI pursuant to the Certificate of Incorporation or Bylaws of TAI, except for any liens created in favor of the Administrative Agent and the Collateral Agent under the RSA Transaction Documents.
Reliance; Closing.
IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of June 30, 2023, in her capacity as Secretary of Thalassa Americas Inc., and not in any individual or personal capacity.
This certificate and the certifications contained herein may be relied upon by Nordbank International AG, in its capacity as Administrative Agent and Collateral Agent under the Senior Secured Credit Agreement, and by each of the Lenders party to the Senior Secured Credit Agreement, including, without limitation:
• Aegean Capital Bank SA
• Harborstone Bank plc
• Pacifica Trade Finance Corp.
• Continental Maritime Lending GmbH
• Triton Credit Partners LP
• Laurentian Shipping Fund II
• Caspian Asset Management Ltd.
• Pelagos Institutional Credit Fund
and by Dralvecen Mezzanine Capital LLC, and by their respective counsel, including Whitfield, Crane & Burgess LLP and Kellner & Foss LLP, in each case in connection with the closing of the transactions contemplated by the RSA Transaction Documents on this date, June 30, 2023.
This certificate is also delivered in connection with, and the addressees hereof and their respective counsel are entitled to rely upon this certificate in connection with, the legal opinions of Calderwood & Harkness LLP dated June 30, 2023, including, without limitation, the Due Authorization and Enforceability opinion and the No Conflicts / No Violations opinion delivered by Calderwood & Harkness LLP on behalf of TAI in connection with the closing of the RSA transactions.
THALASSA AMERICAS INC.
By: ________
Name: Elena M. Vassilakis
Title: Secretary
Date: June 30, 2023
COUNTER-CERTIFICATION
The undersigned, Marcus Hale, being the duly elected, qualified, and acting President of Thalassa Americas Inc., a Delaware corporation, hereby certifies that Elena M. Vassilakis is the duly elected, qualified, and acting Secretary of Thalassa Americas Inc. as of June 30, 2023, and that the signature appearing on the foregoing Secretary's Certificate is the genuine signature of Elena M. Vassilakis. The undersigned further certifies that Elena M. Vassilakis is authorized to deliver the foregoing Secretary's Certificate on behalf of Thalassa Americas Inc. in connection with the RSA Transaction Documents and the transactions contemplated thereby.
THALASSA AMERICAS INC.
By: ________
Name: Marcus Hale
Title: President
Date: June 30, 2023
EXHIBIT A
CERTIFICATE OF INCORPORATION OF THALASSA AMERICAS INC.
Attached hereto is a true, correct, and complete copy of the Certificate of Incorporation of Thalassa Americas Inc., as amended to date, as filed with the Secretary of State of the State of Delaware. TAI is a C-Corporation organized under the General Corporation Law of the State of Delaware and is a wholly-owned subsidiary of Thalassa Shipping & Logistics Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic.
[Certificate of Incorporation and all amendments thereto attached behind this page]
EXHIBIT B
BYLAWS OF THALASSA AMERICAS INC.
Attached hereto is a true, correct, and complete copy of the Bylaws of Thalassa Americas Inc., as amended to date.
[Bylaws and all amendments thereto attached behind this page]
EXHIBIT C
RESOLUTIONS OF THE BOARD OF DIRECTORS OF THALASSA AMERICAS INC.
Adopted by Unanimous Written Consent Dated June 22, 2023
Attached hereto is a true, correct, and complete copy of the Resolutions of the Board of Directors of Thalassa Americas Inc., adopted by unanimous written consent in lieu of a meeting, pursuant to Section 141(f) of the General Corporation Law of the State of Delaware.
The key substantive provisions of the Resolutions include the following:
RECITALS:
WHEREAS, Thalassa Americas Inc., a Delaware corporation (the "Company" or "TAI"), is a wholly-owned subsidiary of Thalassa Shipping & Logistics Société Anonyme, a société anonyme organized under the laws of the Hellenic Republic ("TSL");
WHEREAS, TSL, as Borrower, TAI, as Co-Borrower for the U.S. Tranche, Nordbank International AG, as Administrative Agent and Collateral Agent, and the Lenders from time to time party thereto, 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 "Original Credit Agreement"), providing for aggregate commitments in the original principal amount of $685,000,000;
WHEREAS, TSL, TAI, and certain of the Lenders have entered into that certain Restructuring Support Agreement dated March 14, 2023 (the "RSA"), pursuant to which the parties thereto have agreed to the terms of a comprehensive out-of-court restructuring of the obligations under the Original Credit Agreement and certain related arrangements;
WHEREAS, in connection with the RSA, TSL, TAI, the Administrative Agent, the Collateral Agent, and the Required Lenders have negotiated Amendment No. 1 to the Senior Secured Credit Agreement dated as of May 15, 2023 ("Amendment No. 1"), providing for, among other things, (i) the extension of the maturity date under the Original Credit Agreement to June 15, 2027, (ii) the conversion of $75,000,000 in aggregate principal amount of outstanding Term Loan A borrowings to payment-in-kind ("PIK") obligations, (iii) the reduction of the revolving credit facility commitments from $225,000,000 to $150,000,000, (iv) certain financial covenant resets, including a Maximum Net Leverage Ratio of 7.00x stepping down to 5.50x by the fourth fiscal quarter of 2025, a Minimum Liquidity covenant of $30,000,000, and a waiver of the Interest Coverage Ratio covenant through the fourth fiscal quarter of 2023, (v) the payment of an amendment fee of $5,400,000 on a PIK basis, and (vi) a waiver of default interest previously accrued in connection with certain acknowledged Events of Default under the Original Credit Agreement;
WHEREAS, in connection with the RSA and Amendment No. 1, TAI and TSL have negotiated the Amended and Restated Intercompany Promissory Note dated May 25, 2023 (the "A&R Intercompany Note"), which amends and restates in its entirety the existing Subordinated Intercompany Promissory Note dated June 15, 2019, in the original principal amount of $76,400,000, from TAI, as maker, to TSL, as payee, and provides for, among other things, a reduction of the applicable interest rate from 5.0% per annum to 2.0% per annum and an extension of the maturity date from December 31, 2025 to December 31, 2028;
WHEREAS, the Board of Directors of TAI has determined that it is in the best interests of TAI and its stockholder to authorize the execution, delivery, and performance of Amendment No. 1, the A&R Intercompany Note, and the other RSA Transaction Documents to which TAI is or may become a party;
NOW, THEREFORE, BE IT:
RESOLVED, that the execution, delivery, and performance by TAI of Amendment No. 1 to the Senior Secured Credit Agreement, in substantially the form presented to the Board, with such changes, modifications, and additions thereto as any Authorized Officer (as defined below) shall approve, such approval to be conclusively evidenced by such officer's execution thereof, be, and hereby is, authorized, approved, and ratified in all respects;
RESOLVED FURTHER, that the execution, delivery, and performance by TAI of the Amended and Restated Intercompany Promissory Note in the principal amount of $76,400,000, with the interest rate reduced from 5.0% per annum to 2.0% per annum and the maturity date extended to December 31, 2028, in substantially the form presented to the Board, with such changes, modifications, and additions thereto as any Authorized Officer shall approve, be, and hereby is, authorized, approved, and ratified in all respects;
RESOLVED FURTHER, that the execution, delivery, and performance by TAI of such other RSA Transaction Documents to which TAI is or may become a party, including, without limitation, the Joinder Agreement and any ancillary certificates, instruments, agreements, and other documents, in each case in substantially the form presented to the Board (or, if not so presented, in such form as any Authorized Officer shall approve), be, and hereby are, authorized, approved, and ratified in all respects;
RESOLVED FURTHER, that each of Marcus Hale (President), Diana Restrepo (Vice President, Finance), and Jonathan Kurtz (Vice President, Operations) (each, an "Authorized Officer"), acting individually or together, be, and each of them hereby is, authorized, empowered, and directed, in the name and on behalf of TAI, to execute and deliver any and all documents, instruments, certificates, and agreements, and to take any and all actions, as any such Authorized Officer shall deem necessary, appropriate, or desirable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated by the RSA Transaction Documents;
RESOLVED FURTHER, that any and all actions heretofore taken by any officer or director of TAI in connection with the negotiation, preparation, and execution of the RSA, the forbearance agreements and extensions entered into between December 2022 and May 2023, and the RSA Transaction Documents, be, and the same hereby are, ratified, confirmed, approved, and adopted in all respects as the acts and deeds of TAI.
[Full text of Resolutions, together with executed signature pages, attached behind this page]
EXHIBIT D
CERTIFICATE OF GOOD STANDING THALASSA AMERICAS INC.
Attached hereto is a certificate of good standing (or certificate of status) for Thalassa Americas Inc. issued by the Secretary of State of the State of Delaware, dated on or about June 28, 2023.
[Certificate of Good Standing attached behind this page]
| Name | Title | Specimen Signature |
| Marcus Hale | President | ________ |
| Diana Restrepo | Vice President, Finance | ________ |
| Jonathan Kurtz | Vice President, Operations | ________ |