PRIVILEGED AND CONFIDENTIAL
DRAFT — FOR DISCUSSION PURPOSES ONLY
C&H REVIEWED DRAFT — September 12, 2022
RAJENDRA & OSMAN LLP Advocates & Solicitors 6 Battery Road, #28-01 Singapore 049909
Tel: +65 6320 8800
Fax: +65 6320 8899
This draft has been prepared by Rajendra & Osman LLP for review by Calderwood & Harkness LLP (125 Broad Street, New York, NY 10004), as lead international counsel to the Issuer, in connection with Calderwood & Harkness Matter No. 1044-00004 (Client No. 80214-TSL). This draft is subject to further revision and is not intended to be, and shall not be treated as, a final delivered opinion. No person is entitled to rely on this draft.
[●], 2022
SINGAPORE LAW OPINION
1. Addressees
To each of the following:
Thalassa Shipping & Logistics SA (the "Issuer" or "TSL") 42 Akti Miaouli Piraeus 185 35 Greece
Thalassa Finance Pte. Ltd. (the "Co-Issuer" or "TFPL") 8 Marina Boulevard, #36-02 Marina Bay Financial Centre Tower 1 Singapore 018981
Calderwood & Harkness LLP (as counsel to the Issuer) 125 Broad Street New York, NY 10004 United States of America
Anchor Bay Securities LLC (as Lead Initial Purchaser) 599 Lexington Avenue, 28th Floor New York, NY 10022 United States of America
Halcyon Partners International Ltd. (as Co-Manager and Initial Purchaser) 25 Old Broad Street London EC2N 1HQ United Kingdom
Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (as Trustee) 80 Robinson Road, #02-00 Singapore 068898
Atlas Collateral Agency Pte. Ltd. (as Security Agent) 80 Robinson Road, #02-00 Singapore 068898
Whitfield & Crane LLP (as counsel to the Initial Purchasers) One Liberty Plaza, 165 Broadway New York, NY 10006 United States of America
Thornton Ashworth LLP (as counsel to the Trustee) 1 Raffles Place, #44-02 One Raffles Place Tower 1 Singapore 048616
Ladies and Gentlemen:
2. Introduction, Engagement, and Capacity
We, Rajendra & Osman LLP ("R&O," "we," "us," or "our"), act as Singapore-law counsel to Thalassa Shipping & Logistics SA, a société anonyme organized under the laws of the Hellenic Republic (GEMI No. 148276201000) (the "Issuer" or "TSL"), and Thalassa Finance Pte. Ltd. (UEN 202209345K), a private company limited by shares incorporated under the laws of Singapore (the "Co-Issuer" or "TFPL"), in connection with the proposed offering (the "Offering") of US$400,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029 (the "Notes").
The Notes are to be co-issued by TSL, as primary Issuer, and TFPL, as Co-Issuer. The Notes are to be offered and sold to qualified institutional buyers in reliance on Rule 144A under the United States Securities Act of 1933, as amended (the "Securities Act"), and to certain persons in offshore transactions in reliance on Regulation S under the Securities Act.
Our engagement in connection with this matter was made at the direction of, and pursuant to the requirements of, TSL's lead international counsel, Calderwood & Harkness LLP, 125 Broad Street, New York, NY 10004, United States of America (Calderwood & Harkness Matter No. 1044-00004). Our scope of engagement is limited to the provision of legal opinions on matters of Singapore law as they relate to TFPL in its capacity as Co-Issuer and as a grantor of security under the Security Documents (as defined below).
This opinion is delivered pursuant to the requirements of Section 7(l) of the Purchase Agreement (as defined below) among the Co-Issuers, the Guarantor Subsidiaries (as defined below), and the Initial Purchasers (as defined below), being Anchor Bay Securities LLC ("Anchor Bay") and Halcyon Partners International Ltd. ("Halcyon" and, together with Anchor Bay, the "Initial Purchasers"). Delivery of this opinion is a condition precedent to the obligations of the Initial Purchasers to consummate the purchase of the Notes on the Closing Date (as defined below).
This opinion is limited to the laws of the Republic of Singapore as in effect on the date of delivery of this opinion. We express no opinion on the laws of any other jurisdiction, including, without limitation, the laws of Greece, the United States of America, England and Wales, Malta, the marshall Islands, the United Arab Emirates, or the Cayman Islands.
Anil Rajendra, Managing Partner of Rajendra & Osman LLP, is the attorney responsible for the preparation and delivery of this opinion.
3. Definitions
In this opinion, unless the context otherwise requires, the following capitalized terms have the meanings set out below:
"ACRA" means the Accounting and Corporate Regulatory Authority of Singapore.
"Assignment of Intercompany Loan Receivables" means the deed of assignment in near-final draft form, pursuant to which TFPL assigns to Atlas Collateral Agency Pte. Ltd., as Security Agent, the aggregate intercompany loan receivables of US$365,000,000 owed by the fleet-owning subsidiaries of the TSL group to TFPL, as security for the obligations of the Co-Issuers under the Notes, the Indenture, and the other Transaction Documents.
"Closing Date" means the originally targeted settlement date of October 15, 2022, or such other date as the Co-Issuers and the Initial Purchasers may agree.
"Co-Issuer" or "TFPL" means Thalassa Finance Pte. Ltd. (UEN 202209345K), a private company limited by shares incorporated under the laws of the Republic of Singapore, with its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981.
"Companies Act" means the Companies Act 1967 of Singapore (Cap. 50), as amended, modified, or supplemented from time to time.
"Director's Certificate" means the certificate of the Sole Director as to certain factual matters, in a form to be agreed between R&O, TFPL, and Calderwood & Harkness LLP.
"Guarantor Subsidiaries" means, collectively: (a) Thalassa Dry Bulk Operations Ltd., a company organized under the laws of Malta; (b) Thalassa Container Feeder Ltd., a corporation organized under the laws of the Republic of the marshall Islands; (c) Thalassa Port Services FZCO, a free zone company organized under the laws of the Emirate of Dubai, United Arab Emirates; and (d) Thalassa Freight Solutions Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore.
"Indenture" means the indenture (near-final, 5th draft dated September 6, 2022) among the Co-Issuers, the Guarantor Subsidiaries, Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (as Trustee), and Atlas Collateral Agency Pte. Ltd. (as Security Agent), governing the terms and conditions of the Notes, governed by the laws of the Republic of Singapore.
"Initial Purchasers" means, collectively, Anchor Bay Securities LLC and Halcyon Partners International Ltd.
"Intercreditor Agreement" means the intercreditor agreement (near-final, 3rd draft) among the Co-Issuers, the Guarantor Subsidiaries, Atlas Collateral Agency Pte. Ltd. (as Security Agent), and Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (as Trustee), governing the relative rights and priorities of the secured parties with respect to the collateral securing the Notes.
"Issuer" or "TSL" means Thalassa Shipping & Logistics SA, a société anonyme organized under the laws of the Hellenic Republic (GEMI No. 148276201000), with its registered office at 42 Akti Miaouli, Piraeus 185 35, Greece.
"Notes" means the US$400,000,000 aggregate principal amount of Senior Secured Notes due 2029, bearing interest at a rate of 8.750% per annum, to be co-issued by TSL (as primary Issuer) and TFPL (as Co-Issuer).
"Paying Agent Agreement" means the paying agent and transfer agent agreement among the Co-Issuers and Marlowe Asset Management Trust Company of Singapore Pte. Ltd.
"Purchase Agreement" means the purchase agreement among the Co-Issuers, the Guarantor Subsidiaries, and the Initial Purchasers with respect to the offering and sale of the Notes.
"Registration Rights Agreement" means the registration rights agreement among the Co-Issuers and the holders of the Notes, setting out the obligations of the Co-Issuers with respect to the registration or exchange of the Notes.
"Security Agent" means Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), acting in its capacity as security agent and collateral agent under the Security Documents and the Intercreditor Agreement, with its registered office at 80 Robinson Road, #02-00, Singapore 068898.
"Security Documents" means, collectively: (a) the Share Pledge Agreement (TFPL); (b) the Assignment of Intercompany Loan Receivables; (c) the Deeds of Ship Mortgage in respect of each vessel forming part of the TSL fleet; (d) the Deeds of Assignment of Earnings and Insurances in respect of each such vessel; and (e) the Share Pledge Agreements for each Guarantor Subsidiary, in each case as governed by the laws of the Republic of Singapore.
"Share Pledge Agreement (TFPL)" means the agreement in near-final draft form, pursuant to which TSL pledges 100% of the issued and outstanding shares in the capital of TFPL in favor of Atlas Collateral Agency Pte. Ltd., as Security Agent, as security for the obligations of the Co-Issuers under the Notes, the Indenture, and the other Transaction Documents.
"Sole Director" means Marina Demetriou, the sole director of TFPL, as confirmed by the records of ACRA and the Register of Directors of TFPL.
"Transaction Documents" means, collectively, the Indenture, the Purchase Agreement, the Security Documents, the Intercreditor Agreement, the Registration Rights Agreement, and the Paying Agent Agreement, in each case to the extent that TFPL is a party thereto, and any other document to which TFPL is a party that is entered into in connection with the Offering.
"Trustee" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd., acting in its capacity as trustee under the Indenture, with its registered office at 80 Robinson Road, #02-00, Singapore 068898.
> [C&H Comment (Brendan Walsh): Please confirm that all Transaction Documents to which TFPL is a party are individually enumerated in the definition. We would like to see explicit reference to the Intercreditor Agreement and the Registration Rights Agreement in addition to the Indenture, Purchase Agreement, and Security Documents. — *Confirmed: the current draft of Section 3 now includes the Intercreditor Agreement, the Registration Rights Agreement, and the Paying Agent Agreement. R&O to confirm that no additional documents to which TFPL is a party have been omitted.*]
4. Documents and Searches Examined
For the purposes of rendering this opinion, we have examined originals or copies (certified or otherwise identified to our satisfaction) of the documents described in Sections 4.1 through 4.4 below.
4.1 Corporate and Constitutional Documents
We have examined the following corporate and constitutional documents relating to TFPL:
(a) the Certificate of Incorporation of TFPL issued by ACRA, evidencing the incorporation of TFPL as a private company limited by shares under the laws of the Republic of Singapore;
(b) the Constitution of TFPL (comprising the Memorandum and Articles of Association of TFPL) as filed with ACRA, being the constitution currently in force as at the date of our ACRA search;
(c) the ACRA BizFile profile of TFPL (UEN 202209345K), including the current particulars of directors, shareholders, registered address (being 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981), and details of share capital (including the number, class, and paid-up status of shares);
(d) the written resolutions of the sole director of TFPL (Marina Demetriou), dated [●] 2022, authorizing: (i) the co-issuance of the Notes by TFPL and TSL; (ii) the execution, delivery, and performance by TFPL of each of the Transaction Documents to which it is a party; (iii) the granting of security over the intercompany loan receivables in the aggregate amount of US$365,000,000 pursuant to the Assignment of Intercompany Loan Receivables; and (iv) the granting of the share pledge over the issued shares of TFPL pursuant to the Share Pledge Agreement (TFPL);
(e) the Register of Members of TFPL, confirming that TSL is the holder of 100% of the issued shares in the capital of TFPL; and
(f) the Register of Directors and Secretary of TFPL, confirming that Marina Demetriou is the sole director of TFPL and recording such other particulars as are required by the Companies Act.
4.2 Transaction Documents Reviewed
We have reviewed the following Transaction Documents, each in near-final draft form, as provided to us by Calderwood & Harkness LLP:
(a) the Indenture (near-final, 5th draft dated September 6, 2022);
(b) the Purchase Agreement (near-final draft);
(c) the Share Pledge Agreement (TFPL) (near-final draft);
(d) the Assignment of Intercompany Loan Receivables (near-final draft);
(e) the Intercreditor Agreement (near-final, 3rd draft);
(f) the Registration Rights Agreement (near-final draft);
(g) the Paying Agent and Transfer Agent Agreement (near-final draft);
(h) the forms of Global Note, comprising a Rule 144A Global Note and a Regulation S Global Note, each in the form appended to the draft Indenture; and
(i) the Offering Memorandum (near-final, 4th draft dated September 12, 2022) relating to the Offering.
We note that each of the foregoing documents has been provided to us in draft form and that the final, execution versions of such documents may differ in material respects from the drafts we have reviewed. This opinion is given on the basis of the drafts referred to above, and we reserve the right to review and, if necessary, amend or supplement this opinion in light of any changes to the final, execution versions of the Transaction Documents.
4.3 Searches Conducted
We have caused the following searches to be conducted:
(a) a search of the ACRA electronic register (BizFile) in respect of TFPL (UEN 202209345K), including a search of the register of charges, the register of directors and shareholders, the particulars of the company's filed constitutional documents, and any notices or filings lodged with ACRA — date of search: [●] (expected to be a date immediately prior to the Closing Date);
(b) a search of the records of the General Division of the High Court of the Republic of Singapore for any winding-up petitions or judicial management applications filed against TFPL — date of search: [●]; and
(c) a search of the records of the Insolvency and Public Trustee's Office of Singapore for any pending or completed bankruptcy or winding-up proceedings involving TFPL — date of search: [●].
We note that the dates of the foregoing searches are to be inserted at or immediately prior to the Closing Date, and we expect to conduct each such search, or cause each such search to be refreshed, no earlier than [three (3)] business days prior to the Closing Date.
> [C&H Comment (Natasha Forbes): Please add a search of the Singapore courts for any pending litigation against TFPL, not limited to insolvency proceedings. This should include a search for writs of summons, originating claims, and originating applications in the General Division of the High Court and the State Courts. Also confirm the search dates will be refreshed to within 3 business days of the Closing Date. — *R&O to advise on scope and availability of such searches.*]
4.4 Certificates and Confirmations Relied Upon
In addition to the documents and searches described above, we have relied upon the following certificates and confirmations:
(a) a certificate of the sole director of TFPL (Marina Demetriou), dated as of the Closing Date, in a form to be agreed among R&O, TFPL, and Calderwood & Harkness LLP (the "Director's Certificate"), confirming certain factual matters relevant to this opinion, including (without limitation) the solvency of TFPL, the absence of any pending or threatened litigation, the accuracy of the corporate records of TFPL, and the absence of any prior encumbrances on the assets of TFPL; and
(b) a certificate of the company secretary of TFPL, if any company secretary has been appointed, or, if no company secretary has been appointed, a confirmation from the Sole Director that TFPL has not appointed a separate company secretary and that the Sole Director fulfills the administrative functions ordinarily performed by a company secretary.
> [C&H Comment (Brendan Walsh): We note that TFPL may not have a company secretary appointed. Please confirm whether a company secretary has been appointed and, if not, note the reliance on the sole director's certificate in lieu thereof. Under section 171(1) of the Companies Act, a private company may elect not to appoint a company secretary within the first six (6) months from the date of its incorporation, but is thereafter required to appoint a company secretary. Given that TFPL was incorporated in 2022 (UEN 202209345K), please confirm whether the six-month period has elapsed and whether a company secretary appointment is required as of the Closing Date. If no company secretary has been appointed and one is required, please address any resulting compliance issue. — *R&O to confirm.*]
5. Assumptions
In rendering the opinions set forth in Section 6 below, we have made the following assumptions, without independent verification:
(a) All copies of documents examined by us are true, complete, and accurate copies of the originals thereof, and the originals of such documents are authentic and complete.
(b) All signatures on documents examined by us are genuine, and each individual signing any document on behalf of any party has been duly authorized to do so.
(c) The constitutional documents of TFPL as filed with ACRA (including the Constitution of TFPL) are current and have not been amended, revoked, or superseded since the date of the most recent ACRA search conducted by us, and no resolutions have been passed or other corporate action taken to amend, revoke, or supersede such documents.
(d) The written resolutions of the sole director of TFPL (Marina Demetriou) referred to in Section 4.1(d) above are genuine, were duly passed in accordance with TFPL's Constitution and the Companies Act, and remain in full force and effect as of the date of this opinion, and no further resolutions of the sole director or the sole shareholder of TFPL have been passed that would amend, revoke, or supersede such resolutions.
(e) TSL, as the sole shareholder of TFPL, has not imposed any restrictions on the power of TFPL to enter into the Transaction Documents, to perform its obligations thereunder, or to grant security as contemplated by the Security Documents, beyond those restrictions set out in TFPL's Constitution as filed with ACRA and reviewed by us.
(f) Each party to the Transaction Documents (other than TFPL, as to which we opine below) has the requisite legal capacity, corporate power, and authority under its jurisdiction of organization and under its constitutional documents to execute and deliver, and to perform its obligations under, the Transaction Documents to which it is a party, and the Transaction Documents constitute, or upon execution and delivery will constitute, valid and binding obligations of such parties, enforceable against each of them in accordance with the respective terms of such documents.
(g) The Transaction Documents have been or will be duly executed and delivered by all parties thereto, other than TFPL (as to whose execution and delivery we opine in Section 6 below).
(h) The choice of the laws of the Republic of Singapore as the governing law of the Transaction Documents is bona fide and legal, and there is no reason for such choice of law to be disregarded, set aside, or not given effect by a court of competent jurisdiction in Singapore, including without limitation on the basis of fraud, duress, undue influence, misrepresentation, or public policy considerations.
(i) Insofar as any obligation of any party under the Transaction Documents is to be performed, or any transaction contemplated by the Transaction Documents is to be consummated, in a jurisdiction outside the Republic of Singapore, such performance or consummation will not be illegal, unenforceable, or contrary to public policy under the laws of the relevant jurisdiction.
(j) The ACRA searches and court searches referred to in Section 4.3 above are accurate, complete, and up-to-date as of the time of each respective search, and no changes have occurred in the circumstances of TFPL or in the records of ACRA, the High Court, or the Insolvency and Public Trustee's Office between the date of each such search and the date of this opinion that would affect the accuracy or completeness of the information disclosed thereby.
(k) TFPL has not been the subject of any winding-up petition, judicial management application, scheme of arrangement, moratorium, or other insolvency proceeding that has not been disclosed in the searches conducted by us, and no such proceeding is pending or threatened as of the date of this opinion.
(l) The intercompany loan receivables in the aggregate amount of US$365,000,000 described in the Assignment of Intercompany Loan Receivables exist as valid and enforceable debts as a matter of the laws governing the relevant intercompany loan agreements, and the intercompany loan agreements pursuant to which such receivables arise have been duly authorized, executed, and delivered by all parties thereto and remain in full force and effect.
> [C&H Comment (Robert Adeyemi): In assumption (l), please also assume that the intercompany loan agreements are not subject to any prior assignment, lien, charge, pledge, or other encumbrance, and that no notice of assignment in respect of such receivables has been given by or on behalf of TFPL or any other party to any obligor or third party. This is critical given the significance of the US$365M receivables assignment in the security package. The entire noteholder recovery analysis in the event of an enforcement rests substantially on the validity and priority of this assignment, and we need the assumption to be watertight. — *R&O to incorporate.*]
6. Opinions
Based upon and subject to the assumptions set forth in Section 5 above, the qualifications and reservations set forth in Section 8 below, and the limitations set forth in Section 7 below, and having regard to such considerations of Singapore law as we consider relevant, we are of the opinion that:
6.1 Due Incorporation and Valid Existence
TFPL is a private company limited by shares that has been duly incorporated and is validly existing under the laws of the Republic of Singapore. TFPL is registered with ACRA under Unique Entity Number (UEN) 202209345K. Based on the ACRA BizFile search conducted by us, TFPL has not been struck off the register of companies maintained by ACRA, no application to strike off TFPL from such register is pending, and no notice under section 344 or section 344A of the Companies Act has been issued to TFPL. TFPL's registered office is at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981, as recorded in the records of ACRA.
6.2 Corporate Capacity and Power
TFPL has the corporate capacity and power under its Constitution and under the Companies Act to:
(a) act as co-issuer of the Notes jointly with TSL;
(b) enter into, execute, and deliver each of the Transaction Documents to which it is a party;
(c) perform its obligations under each of the Transaction Documents to which it is a party, including its obligations as co-issuer under the Indenture and the Notes; and
(d) grant the security contemplated by the Share Pledge Agreement (TFPL) and the Assignment of Intercompany Loan Receivables, including the assignment of the intercompany loan receivables in the aggregate amount of US$365,000,000 in favor of Atlas Collateral Agency Pte. Ltd. as Security Agent.
We have reviewed TFPL's Constitution as filed with ACRA, and we confirm that TFPL's Constitution does not contain any restriction, limitation, or prohibition that would prevent TFPL from entering into the Transaction Documents, performing its obligations thereunder, or granting the security contemplated thereby. In particular, we note that TFPL's Constitution does not contain any objects clause that would restrict the scope of TFPL's corporate activities, and accordingly TFPL has full capacity under section 23 of the Companies Act (as amended by the Companies (Amendment) Act 2014) to carry on or undertake any business or activity, do any act, or enter into any transaction.
> [C&H Comment (Brendan Walsh): Please expand this opinion to expressly cover TFPL's capacity to grant the first-priority assignment of the US$365,000,000 intercompany loan receivables. We note this is the single largest component of the TFPL-level security. Please also confirm that the objects clause in TFPL's Constitution (if any) is sufficiently broad. — *R&O notes: We have confirmed that TFPL's Constitution does not contain a separate objects clause, and that section 23 of the Companies Act (as amended) provides that a company has full capacity to carry on or undertake any business or activity. We will expand the opinion language in the final version to address this point more explicitly. R&O to provide revised language.*]
6.3 Due Authorization
The execution, delivery, and performance of the Transaction Documents by TFPL have been duly authorized by all necessary corporate action on the part of TFPL. Specifically:
(a) The written resolutions of the sole director of TFPL (Marina Demetriou), dated [●] 2022, duly authorize TFPL to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder, including the granting of security under the Security Documents.
(b) Under the Companies Act and TFPL's Constitution, the management and conduct of the business and affairs of TFPL are vested in its director(s). As TFPL has only one director (Marina Demetriou), the written resolutions of the Sole Director constitute valid and effective corporate authorization for the purposes of the Transaction Documents.
(c) No shareholder approval of TSL (as the sole shareholder of TFPL) is required under the Companies Act or under TFPL's Constitution in respect of the execution, delivery, or performance of the Transaction Documents, or the granting of security thereunder, other than such approvals as have been duly obtained or will be duly obtained prior to the Closing Date.
> [C&H Comment (Natasha Forbes): Please confirm whether any of the Transaction Documents constitute "interested person transactions" under Part IX of Chapter 9 of the listing rules of the Singapore Exchange Securities Trading Limited (SGX-ST) or under the Companies Act, and if so, whether additional approvals are required. Although TFPL is a private company and not listed on the SGX-ST or any other securities exchange, we want to confirm the analysis and ensure that no provision of the Companies Act (including sections 162 and 163 relating to loans to directors and substantial shareholders' transactions) is triggered by the intercompany loan arrangements or the security structure. — *R&O to confirm. Preliminary view: TFPL is a private company exempt from listing rules; sections 162 and 163 analysis to be completed.*]
6.4 Enforceability. Each Transaction Document to which TFPL is a party constitutes, or when duly executed and delivered by all parties thereto in accordance with its terms will constitute, a legal, valid, and binding obligation of TFPL, enforceable against TFPL in accordance with its terms, subject in each case to the qualifications and reservations set forth in Section 8 below.
In rendering this opinion, we have assumed that each Transaction Document is, or upon execution will be, governed by the laws of the Republic of Singapore and that the Transaction Documents, as executed, will be in substantially the same form as the near-final drafts reviewed by us.
6.5 No Conflicts with Singapore Law
The execution, delivery, and performance by TFPL of the Transaction Documents to which it is a party do not and will not:
(a) contravene any provision of the Companies Act or any other applicable statute, rule, regulation, or subsidiary legislation of the Republic of Singapore that is currently in force and that, in our experience, would be applicable to a private company limited by shares incorporated in Singapore engaging in the transactions of the type contemplated by the Transaction Documents;
(b) contravene or conflict with any provision of TFPL's Constitution as filed with ACRA and reviewed by us;
(c) result in a breach of, or constitute a default under, any order, judgment, award, injunction, or decree of any court, tribunal, or governmental authority of the Republic of Singapore that is binding on TFPL, to the extent disclosed by the searches conducted by us as described in Section 4.3 above; or
(d) require any consent, approval, license, permit, authorization, or exemption of, or any filing, registration, notification, or declaration with, any governmental authority, regulatory body, court, or tribunal of the Republic of Singapore, other than:
(i) filings with ACRA required to be made in the ordinary course following execution of the Transaction Documents, including the lodgment or registration of charges created under the Security Documents pursuant to Part XII of the Companies Act (including section 131 thereof); and
(ii) the payment of stamp duty (if any) under the Stamp Duties Act (Cap. 312) of Singapore, as more fully described in Section 8.2 below.
6.6 ACRA Compliance
Based on the ACRA BizFile search conducted by us as described in Section 4.3(a) above, TFPL is in compliance in all material respects with its filing and registration obligations under the Companies Act and the requirements of ACRA. In particular:
(a) TFPL's annual returns, to the extent that any such annual returns have fallen due since the date of TFPL's incorporation, have been filed with ACRA as and when required under the Companies Act.
(b) The sole director of TFPL (Marina Demetriou) is duly appointed and her appointment has been duly lodged with ACRA in accordance with the Companies Act.
(c) TFPL's registered address, as filed with ACRA and reflected in the ACRA BizFile profile, corresponds to 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981.
(d) The share capital of TFPL, as recorded in the ACRA BizFile profile, is consistent with the information provided to us and reflected in the Register of Members of TFPL.
> [C&H Comment (Brendan Walsh): Please also confirm that any charges to be created under the Security Documents (including the Share Pledge Agreement (TFPL) and the Assignment of Intercompany Loan Receivables) will need to be registered with ACRA under section 131 of the Companies Act within 30 days of the date of creation, and that failure to so register may render the charges void against a liquidator and any creditor of TFPL. We would like this addressed as both an opinion (see Section 6.9 and Section 8.3 below) and as a practical step to be included in the closing checklist. Specifically: > > (i) Please confirm the registration timeline and the consequences of non-registration. > > (ii) Please confirm who will be responsible for effecting the ACRA charge registration (R&O or TFPL's in-house team). > > (iii) Please confirm whether the charges are registrable as "book debts" (for the receivables assignment) and as a "charge on shares" (for the share pledge) under section 131(3) of the Companies Act. > > *— R&O to address. This will also be reflected in the C&H closing checklist (Item 14.3).]*
6.7 No Winding Up or Insolvency
Based on the searches conducted by us as described in Section 4.3 above and on the assumptions set forth in Section 5 above:
(a) no order has been made and no effective resolution has been passed for the winding up of TFPL;
(b) no petition has been presented and no order has been made for the judicial management of TFPL under Part VIIIA of the Companies Act;
(c) no receiver, receiver and manager, judicial manager, or similar officer has been appointed in respect of TFPL or any of its assets or undertaking;
(d) no scheme of arrangement within the meaning of section 210 of the Companies Act has been proposed by or in respect of TFPL, and no order sanctioning any such scheme has been made; and
(e) no application for a moratorium under section 211B of the Companies Act (or any analogous provision) has been filed by or in respect of TFPL.
This opinion is given solely on the basis of the searches described in Section 4.3 and should not be read as a guarantee or warranty as to the solvency of TFPL or the absence of insolvency proceedings not disclosed by such searches.
6.8 Choice of Law and Submission to Jurisdiction
(a) The choice of the laws of the Republic of Singapore as the governing law of the Transaction Documents will be recognized and given effect by the courts of the Republic of Singapore, subject to the assumptions and qualifications set forth in this opinion.
(b) The submission to the non-exclusive jurisdiction of the courts of the Republic of Singapore contained in the Transaction Documents constitutes a valid and binding submission by TFPL to the jurisdiction of such courts, and such submission is enforceable in accordance with its terms.
(c) Any final and conclusive judgment obtained in the courts of the Republic of Singapore in respect of the Transaction Documents, in proceedings to which TFPL is a party, would be enforceable against TFPL in Singapore in accordance with its terms, subject to the applicable procedural requirements of the courts of Singapore and to the qualifications and reservations set forth in Section 8 below.
6.9 Security Interests
The security interests created or intended to be created by TFPL under the Share Pledge Agreement (TFPL) and the Assignment of Intercompany Loan Receivables are, as a matter of Singapore law, capable of being validly created as security interests in favor of Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), acting in its capacity as Security Agent for and on behalf of the holders of the Notes. Upon due execution and delivery of the Share Pledge Agreement (TFPL) and the Assignment of Intercompany Loan Receivables by all parties thereto, and subject to due registration of the charges thereby created with ACRA under Part XII of the Companies Act (including section 131 thereof) within the prescribed 30-day period, such security interests will constitute valid and enforceable security interests in favor of the Security Agent.
This opinion as to the validity of the security interests is subject to the qualifications and reservations set forth in Section 8 below, including in particular Section 8.1 (general enforceability qualifications), Section 8.3 (registration of charges), and Section 8.5 (sanctions, anti-money laundering, and public policy).
> [C&H Comment (Robert Adeyemi): Please expand this opinion to address priority — specifically, whether the security interests will constitute first-priority security interests as a matter of Singapore law, assuming no prior encumbrances exist and that the charges are duly registered with ACRA within the prescribed time period. The Indenture and Security Documents contemplate first-priority security, and we need the opinion to cover this point. In the absence of a first-priority opinion, we will need to evaluate whether additional comfort can be obtained through title/lien searches or through the Director's Certificate. — *R&O to address. Preliminary view: Under Singapore law, priority of charges is generally determined by the date of registration with ACRA (section 137 of the Companies Act), and a properly registered charge will have priority over any subsequently registered charge. R&O will expand the opinion language accordingly, subject to appropriate assumptions regarding the absence of prior encumbrances.*]
7. Reliance and Benefit
This opinion is given solely for the benefit of the addressees named in Section 1 above and their respective successors and permitted assigns, in each case solely in connection with the transactions contemplated by the Transaction Documents. No other person or entity is entitled to rely on this opinion.
This opinion may not be relied upon by any person other than the addressees named herein without the prior written consent of Rajendra & Osman LLP, which consent may be granted or withheld in our sole and absolute discretion.
Notwithstanding the foregoing, this opinion may be disclosed to potential investors in the Notes solely as an exhibit or annex to the Offering Memorandum, or in the form of a summary or description thereof contained in the Offering Memorandum, in accordance with the terms of the Purchase Agreement. Any such disclosure shall not be deemed to confer upon any such potential investor the right to rely on this opinion, except to the extent expressly provided in the Purchase Agreement.
This opinion is given as of the date hereof and we assume no obligation to update or supplement this opinion to reflect any facts, circumstances, changes in law, or developments occurring after the date hereof, except as may be expressly agreed in writing by us.
8. Qualifications and Reservations
The opinions expressed in Section 6 above are subject to the following qualifications and reservations:
8.1 General Enforceability Qualifications
(a) The enforceability of the Transaction Documents may be limited by applicable bankruptcy, insolvency, liquidation, judicial management, moratorium, reorganization, restructuring, or other similar laws of general application affecting creditors' rights generally under the laws of the Republic of Singapore, including (without limitation) Part X, Part VIIIA, and sections 210 and 211B of the Companies Act and the Bankruptcy Act (Cap. 20) of Singapore.
(b) Equitable remedies, including specific performance and injunctive relief, are discretionary in nature and may not be available in all circumstances. A Singapore court may decline to grant specific performance or injunctive relief where damages would be an adequate remedy, where the grant of such relief would cause undue hardship, or where equitable defenses (such as laches, estoppel, or unclean hands) are available.
(c) Claims under or in connection with the Transaction Documents may become barred under the Limitation Act (Cap. 163) of Singapore or, in the case of claims in equity, under the equitable doctrine of laches.
(d) Any provision in the Transaction Documents for the payment of a higher rate of interest upon the occurrence of a default or event of default, or for the payment of additional amounts by way of penalty, may be held to be unenforceable by a Singapore court as a penalty, to the extent that such provision does not represent a genuine pre-estimate of the loss likely to be suffered by the relevant creditor.
(e) A Singapore court may decline to give effect to any contractual provision purporting to exclude or limit the liability of a party for its own fraud, willful default, or fraudulent misrepresentation. Similarly, a Singapore court may not give effect to any indemnification or contribution provision to the extent that it purports to indemnify a party against the consequences of its own fraud, willful misconduct, or gross negligence.
(f) The enforceability of the Transaction Documents may be subject to the common law doctrines of unconscionability, duress, undue influence, frustration, and misrepresentation.
(g) A provision in any Transaction Document that purports to sever or render invalid any provision that is held to be unenforceable may not be given effect by a Singapore court in all circumstances, and the unenforceability of any material provision may affect the enforceability of the Transaction Document as a whole.
8.2 Stamp Duty Qualification
Certain of the Transaction Documents, including in particular the Assignment of Intercompany Loan Receivables and the Share Pledge Agreement (TFPL), may be subject to stamp duty under the Stamp Duties Act (Cap. 312) of Singapore. Any document that is chargeable with stamp duty under the Stamp Duties Act and that is not duly stamped may not be admitted in evidence in any court in the Republic of Singapore or used for any purpose in Singapore, unless the applicable stamp duty and any penalty for late stamping are first paid. However, the failure to pay stamp duty does not render the relevant document void or unenforceable as between the parties thereto.
We advise that a detailed stamp duty analysis in respect of each Transaction Document to which TFPL is a party should be completed prior to execution, and that any stamp duty payable should be computed and paid on or before the Closing Date, or within the time periods prescribed by the Stamp Duties Act.
> [C&H Comment (Natasha Forbes): Please provide a preliminary estimate or analysis of any stamp duty that may be payable on the Assignment of Intercompany Loan Receivables and the Share Pledge Agreement (TFPL). If nil, please confirm and provide the basis for the nil assessment (e.g., exemption under the relevant head of duty, or characterization of the instrument as not falling within any chargeable head). If payable, please quantify so we can include in the closing checklist and fee estimates. In particular, we note that the assignment of receivables may be characterized as a transfer of "stock or shares" or a "conveyance, assignment, or transfer" under the Stamp Duties Act, and we would like R&O's analysis on the applicable head of duty. — *R&O to provide preliminary analysis.*]
8.3 Registration of Charges
Any charge created by TFPL over its property or assets under the Security Documents, including (without limitation) any charge created by the Share Pledge Agreement (TFPL) and any charge created by the Assignment of Intercompany Loan Receivables, must be registered with ACRA in accordance with section 131 of the Companies Act within thirty (30) days from the date of creation of such charge. A charge that is not so registered within the prescribed period is, pursuant to section 131(1) of the Companies Act, void against the liquidator and any creditor of TFPL.
We note, however, that registration of a charge with ACRA does not of itself constitute notice to, or impose constructive notice upon, third parties of the existence or terms of the charge. The registration of a charge with ACRA serves as a statutory requirement for the preservation of priority and enforceability against a liquidator and creditors, but does not confer upon the chargee any additional protection against third parties beyond that provided by the general law.
Upon registration of the relevant charges with ACRA, the date and time of registration will determine priority as between competing charges over the same assets, in accordance with section 137 of the Companies Act.
8.4 Foreign Judgments
The enforcement in the Republic of Singapore of any judgment obtained in a court of a jurisdiction outside Singapore is subject to and governed by:
(a) the Reciprocal Enforcement of Commonwealth Judgments Act (Cap. 264) of Singapore, in respect of judgments obtained in designated Commonwealth countries;
(b) the Reciprocal Enforcement of Foreign Judgments Act (Cap. 265) of Singapore, in respect of judgments obtained in designated foreign countries; and
(c) common law recognition and enforcement procedures, in respect of judgments obtained in jurisdictions not covered by the foregoing statutes.
The enforcement in the Republic of Singapore of foreign arbitral awards is governed by the International Arbitration Act (Cap. 143A) of Singapore and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958).
This opinion does not address the enforceability in Singapore of any judgment or award obtained in any court, tribunal, or arbitral body outside the Republic of Singapore. Separate advice should be obtained in respect of the recognition and enforcement in Singapore of any such foreign judgment or award.
8.5 Sanctions, Anti-Money Laundering, and Public Policy
This opinion is subject to any applicable sanctions laws, anti-money laundering laws, counter-terrorism financing laws, and related regulations and orders of the Republic of Singapore, including (without limitation):
(a) the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A) of Singapore;
(b) the Terrorism (Suppression of Financing) Act (Cap. 325) of Singapore;
(c) any regulations, orders, or directions issued by the Monetary Authority of Singapore under the Monetary Authority of Singapore Act (Cap. 186) or the Payment Services Act 2019 (No. 2 of 2019) in connection with sanctions, anti-money laundering, or counter-terrorism financing; and
(d) any United Nations sanctions implemented by Singapore under the United Nations Act (Cap. 339) or any other applicable legislation.
Any obligation of any party under the Transaction Documents that contravenes, or the performance of which would contravene, the public policy of the Republic of Singapore or any mandatory provision of Singapore law may be held to be void or unenforceable by a court of competent jurisdiction in Singapore.
8.6 Scope Limitation
This opinion addresses only the laws of the Republic of Singapore as in effect on the date of this opinion and does not address or purport to address the laws of any other jurisdiction, including (without limitation) the laws of the Hellenic Republic (Greece), the British Virgin Islands, Malta, the Republic of the marshall Islands, the United Arab Emirates, the Cayman Islands, the United States of America, or England and Wales.
We note for the avoidance of doubt that:
(a) Opinions as to the laws of the Hellenic Republic in connection with TSL and the Offering are being provided separately by Delphi & Karidis LLP, 15 Vasilissis Sofias Avenue, Athens 106 71, Greece (attention: Nikolaos Karidis, Senior Partner).
(b) Opinions as to the Indenture and the Notes under Singapore law, to the extent that such opinions relate to matters beyond the scope of this opinion, are being provided separately by Calderwood & Harkness LLP as lead international counsel to the Issuer.
This opinion does not address any question of fact, including (without limitation) the commercial terms of the Offering, the adequacy of the consideration for the Notes, or the business purpose of any transaction contemplated by the Transaction Documents.
9. Governing Law of This Opinion
This opinion letter is governed by, and shall be construed in accordance with, the laws of the Republic of Singapore. Any dispute arising out of or in connection with this opinion letter shall be submitted to the exclusive jurisdiction of the courts of the Republic of Singapore.
10. Signature block
Yours faithfully,