DEED OF ASSIGNMENT OF INTERCOMPANY LOAN RECEIVABLES
Dated [●], 2022
between
THALASSA FINANCE PTE. LTD. (UEN 202209345K)
as Assignor
and
ATLAS COLLATERAL AGENCY PTE. LTD. (UEN 200115678R)
as Security Agent (for and on behalf of the Secured Parties)
Executed in connection with the $400,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029 issued by Thalassa Shipping & Logistics SA (GEMI No. 148276201000) and Thalassa Finance Pte. Ltd. as Co-Issuers
Governing Law: Singapore
Calderwood & Harkness LLP 125 Broad Street, New York, NY 10004 Matter No. 1044-00004 / Client No. 80214-TSL Near-Final Draft (5th Draft) — September 6, 2022
TABLE OF CONTENTS
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DEED OF ASSIGNMENT OF INTERCOMPANY LOAN RECEIVABLES
THIS DEED OF ASSIGNMENT (this "Deed") is made on [●], 2022
BETWEEN:
1. THALASSA FINANCE PTE. LTD. (UEN 202209345K), a private company limited by shares incorporated under the laws of the Republic of Singapore, having its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981 (the "Assignor" or "TFPL"); and
2. ATLAS COLLATERAL AGENCY PTE. LTD. (UEN 200115678R), a company incorporated under the laws of the Republic of Singapore, having its registered office at 80 Robinson Road, #02-00, Singapore 068898, acting in its capacity as security agent and collateral agent for and on behalf of the Secured Parties (as defined below) (the "Security Agent").
Each a "Party" and together the "Parties."
RECITALS:
(A) Thalassa Shipping & Logistics SA ("TSL"), a société anonyme organized and existing under the laws of the Hellenic Republic, registered with the General Commercial Registry (Geniko Emporiko Mitroo, or "GEMI") under number 148276201000, with its registered office at 42 Akti Miaouli, Piraeus 185 35, Greece, and Thalassa Finance Pte. Ltd. ("TFPL"), a private company limited by shares incorporated and validly existing under the laws of the Republic of Singapore, registered with the Accounting and Corporate Regulatory Authority of Singapore under UEN 202209345K, with its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981, are co-issuers (together, the "Co-Issuers") of $400,000,000 (four hundred million United States Dollars) aggregate principal amount of 8.750% Senior Secured Notes due October 15, 2029 (the "Notes").
(B) The Notes are issued pursuant to an indenture dated [●], 2022 (the "Indenture," near-final 5th draft dated September 6, 2022) among TSL, TFPL, the Guarantors (as defined below), Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), a company incorporated under the laws of Singapore, in its capacity as trustee (the "Trustee"), and Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), in its capacity as security agent and collateral agent (the "Security Agent"). The Notes are being offered and sold in the United States only to qualified institutional buyers in reliance on the exemption from the registration requirements of the Securities Act of 1933, as amended, provided by Rule 144A thereunder, and outside the United States in compliance with Regulation S under the Securities Act.
(C) The Co-Issuers, the Guarantor Subsidiaries (as defined below), Atlas Collateral Agency Pte. Ltd. as Security Agent, and Marlowe Asset Management Trust Company of Singapore Pte. Ltd. as Trustee have entered into (or will enter into on or prior to the closing date of the offering of the Notes) an intercreditor agreement dated [●], 2022 (near-final 3rd draft) (the "Intercreditor Agreement"), which governs, inter alia, the priority of security interests, the application of proceeds of enforcement, and certain other intercreditor matters. This Deed constitutes a "Security Document" as defined in the Indenture and the Intercreditor Agreement.
(D) TFPL has advanced (or will advance on or prior to the closing date of the offering of the Notes) intercompany loans in an aggregate principal amount of $365,000,000 (three hundred sixty-five million United States Dollars) to certain fleet-owning subsidiaries of TSL (each, an "Obligor Subsidiary" and together, the "Obligor Subsidiaries"), as more particularly described in Schedule 1 (Intercompany Loans) hereto. The Obligor Subsidiaries are:
(i) Thalassa Dry Bulk Operations Ltd., a company incorporated under the laws of Malta ("TDBO");
(ii) Thalassa Container Feeder Ltd., a company organized under the laws of the Republic of the marshall Islands ("TCF");
(iii) Thalassa Port Services FZCO, a free zone company established and existing under the laws of the United Arab Emirates, with its principal place of business in Dubai ("TPS"); and
(iv) Thalassa Freight Solutions Pte. Ltd., a private company limited by shares incorporated under the laws of the Republic of Singapore ("TFS").
The intercompany loans (collectively, the "Intercompany Loans") were advanced by TFPL to the Obligor Subsidiaries to fund the acquisition, operation, and maintenance of the fleet of vessels and logistics operations of the TSL group.
(E) The Indenture requires, as a condition precedent to the issuance of the Notes, that TFPL grant first-priority security over all of its intercompany loan receivables in favor of the Security Agent for the benefit of the Secured Parties (as defined below). This Deed forms part of a broader security package granted by the Co-Issuers and the Guarantors in connection with the Notes, which includes, without limitation: (a) first-priority ship mortgages over twenty-eight (28) designated vessels (the "Collateral Vessels") with a current aggregate appraised value of approximately $1,175,000,000 (one billion one hundred seventy-five million United States Dollars), yielding a collateral coverage ratio of approximately 2.94x ($1,175,000,000 ÷ $400,000,000) on the vessel mortgages alone; (b) first-priority assignments of earnings and insurances in respect of the Collateral Vessels; (c) first-priority pledges of one hundred percent (100%) of the equity interests in TFPL and each Guarantor Subsidiary; and (d) this assignment of intercompany loan receivables.
(F) TFPL enters into this Deed for the purpose of assigning, by way of first-priority security, all of its right, title, and interest in and to the Assigned Receivables (as defined below) to the Security Agent, acting for and on behalf of the Secured Parties, to secure the due and punctual payment and performance of the Secured Obligations (as defined below).
NOW THIS DEED WITNESSETH and it is agreed and declared as follows:
ARTICLE 1 — DEFINITIONS AND INTERPRETATION
Section 1.1 — Definitions
In this Deed, unless the context otherwise requires, the following terms shall have the meanings set forth below:
"Assigned Receivables" means all present and future rights, title, and interest of TFPL (whether actual or contingent, vested or future) in, to, and under the Intercompany Loans listed in Schedule 1 hereto, including, without limitation, all principal, interest (including default interest), fees, indemnities, costs, damages, compensation, and any other amounts of whatsoever nature payable by any Obligor Subsidiary thereunder, together with all Related Rights, and all proceeds of the foregoing.
"Assignor" means Thalassa Finance Pte. Ltd. (UEN 202209345K).
"Co-Issuers" means TSL and TFPL, jointly and severally.
"Collateral Vessels" means the twenty-eight (28) designated vessels owned by the Obligor Subsidiaries and other fleet-owning subsidiaries of TSL that are subject to first-priority ship mortgages in favor of the Security Agent (for and on behalf of the Secured Parties), out of a total fleet of fifty (50) vessels, as further identified in the Indenture and the relevant ship mortgage instruments.
"Default" has the meaning given to that term in the Indenture.
"Enforcement Event" means any Event of Default under the Indenture that has occurred and is continuing, and in respect of which the Security Agent has been instructed by the Trustee (acting on behalf of holders of at least twenty-five percent (25%) in aggregate principal amount of the outstanding Notes) to enforce the security created by this Deed or any other Security Document.
"Event of Default" has the meaning given to that term in the Indenture.
"Guarantors" means, collectively: (a) Thalassa Dry Bulk Operations Ltd., a company incorporated under the laws of Malta; (b) Thalassa Container Feeder Ltd., a company organized under the laws of the Republic of the marshall Islands; (c) Thalassa Port Services FZCO, a free zone company established and existing under the laws of the United Arab Emirates; and (d) Thalassa Freight Solutions Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore; and "Guarantor" means any one of them.
"Indenture" means the indenture dated [●], 2022 among TSL, TFPL, the Guarantors, the Trustee, and the Security Agent, governing the Notes, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
"Intercreditor Agreement" means the intercreditor agreement dated [●], 2022 among the Co-Issuers, the Guarantors, the Security Agent, and the Trustee, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
"Intercompany Loans" means each of the intercompany loan agreements listed in Schedule 1 hereto between TFPL (as lender) and each Obligor Subsidiary (as borrower), in the aggregate principal amount of $365,000,000 (three hundred sixty-five million United States Dollars), and "Intercompany Loan" means any one of them.
"Notes" means the $400,000,000 (four hundred million United States Dollars) aggregate principal amount of 8.750% Senior Secured Notes due October 15, 2029, issued by the Co-Issuers pursuant to the Indenture.
"Obligor Subsidiaries" means each fleet-owning subsidiary of TSL listed in Schedule 1 hereto that is a borrower under an Intercompany Loan, and "Obligor Subsidiary" means any one of them.
"Related Rights" means all rights, powers, benefits, claims, remedies, and entitlements of whatsoever nature ancillary to or connected with the Assigned Receivables, including, without limitation: (a) all rights to receive payments of principal, interest, fees, costs, expenses, indemnities, damages, and other amounts; (b) all rights under any guarantee, indemnity, security, or other credit support given in connection with any Intercompany Loan; (c) all rights of set-off and combination of accounts; (d) all rights of action (whether in contract, tort, or otherwise) in respect of any Intercompany Loan; (e) all contractual rights, including rights to enforce covenants, representations, and warranties; and (f) all claims for damages, losses, costs, and expenses.
"Reassignment Date" means the date on which all Secured Obligations have been irrevocably and unconditionally paid and discharged in full and no commitment, obligation, or liability remains outstanding under the Transaction Documents that could give rise to any further Secured Obligation.
"Secured Obligations" means all present and future obligations and liabilities (whether actual or contingent, joint or several, or in any other capacity whatsoever) of the Co-Issuers and the Guarantors to the Secured Parties under or in connection with the Notes, the Indenture, and the other Transaction Documents, including, without limitation, all obligations in respect of principal, interest (including default interest), premium (if any), make-whole amounts, fees, costs, expenses, indemnities, damages, and all other amounts payable thereunder.
"Secured Parties" means, collectively, the Trustee, the Security Agent, and the holders of the Notes from time to time, and "Secured Party" means any one of them.
"Security Agent" means Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), acting in its capacity as security agent and collateral agent for and on behalf of the Secured Parties, or any successor security agent appointed in accordance with the Indenture and the Intercreditor Agreement.
"Transaction Documents" has the meaning given to that term in the Indenture, and includes, without limitation, the Indenture, the Notes, the Purchase Agreement, the Intercreditor Agreement, the Security Documents (including this Deed), and the Registration Rights Agreement.
"Trustee" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), acting in its capacity as trustee under the Indenture, or any successor trustee appointed in accordance with the Indenture.
Section 1.2 — Interpretation
In this Deed, unless the context otherwise requires:
(a) terms defined in the Indenture and not otherwise defined herein shall have the meanings given to them in the Indenture;
(b) references to "Singapore law" or to "the laws of Singapore" mean the laws of the Republic of Singapore as in force from time to time;
(c) headings and sub-headings are for convenience of reference only and shall not affect the interpretation or construction of this Deed;
(d) references to "Articles," "Sections," "Schedules," and "Annexes" are to articles, sections, schedules, and annexes of this Deed, unless otherwise expressly stated;
(e) references to any person shall include that person's successors, permitted assigns, heirs, executors, and administrators (as the case may be);
(f) references to a statute, statutory provision, or regulation shall include any statutory modification, consolidation, or re-enactment thereof from time to time in force;
(g) references to an agreement, instrument, or document shall include that agreement, instrument, or document as amended, restated, supplemented, novated, or otherwise modified from time to time in accordance with its terms;
(h) references to "United States Dollars," "USD," "$," and "dollars" are to the lawful currency of the United States of America, unless otherwise stated;
(i) references to the singular shall include the plural and vice versa, and references to any gender shall include all genders;
(j) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation";
(k) any reference to a "day" shall mean a calendar day, and any reference to a "Business Day" shall have the meaning given to that term in the Indenture;
(l) references to "writing" include any communication made by electronic mail or facsimile transmission; and
(m) where any obligation is expressed to be performed "promptly," it shall be performed within such period as is reasonable in the circumstances, having regard to the nature of the obligation and the commercial context.
Section 1.3 — Conflict with Intercreditor Agreement
(a) In the event of any conflict or inconsistency between the provisions of this Deed and the provisions of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall prevail to the extent of such conflict or inconsistency, and the provisions of this Deed shall be construed and applied accordingly.
(b) In the event of any conflict or inconsistency between the provisions of this Deed and the provisions of the Indenture, the provisions of the Indenture shall prevail to the extent of such conflict or inconsistency, except as otherwise expressly provided in the Intercreditor Agreement.
(c) Nothing in this Deed shall be construed so as to limit, reduce, or otherwise adversely affect the rights, powers, or remedies of the Security Agent or any Secured Party under the Indenture or the Intercreditor Agreement.
ARTICLE 2 — ASSIGNMENT
Section 2.1 — Assignment by Way of Security
(a) In consideration of the Security Agent entering into the Indenture and the Intercreditor Agreement and agreeing to act as Security Agent for and on behalf of the Secured Parties, TFPL, as beneficial owner, hereby assigns and transfers to the Security Agent, by way of first-priority security, all of its right, title, and interest (whether present or future, actual or contingent, vested or unvested) in, to, and under the Assigned Receivables.
(b) This assignment is absolute in form but is made by way of security only. The Security Agent shall hold the benefit of this assignment upon trust for and on behalf of all Secured Parties, in accordance with the terms and conditions of the Indenture and the Intercreditor Agreement.
(c) As of the date of this Deed, the aggregate principal amount of the Assigned Receivables outstanding under the Intercompany Loans is $365,000,000 (three hundred sixty-five million United States Dollars), as more particularly set forth in Schedule 1 hereto. The Assignor acknowledges that the aggregate amount of the Assigned Receivables may increase or decrease from time to time as additional advances are made or repayments are received under the Intercompany Loans, and this assignment shall extend to all such amounts as may be outstanding from time to time.
(d) The Security Agent accepts the benefit of this assignment for and on behalf of itself and all other Secured Parties in accordance with the provisions of the Indenture and the Intercreditor Agreement.
Section 2.2 — Scope of Assignment
The assignment effected by Section 2.1 includes, without limitation, all of the Assignor's right, title, and interest in and to the following:
(a) all principal amounts outstanding from time to time under each Intercompany Loan, whether or not then due and payable;
(b) all accrued and future interest (including any default interest or penalty interest) payable by any Obligor Subsidiary under any Intercompany Loan;
(c) all fees, costs, expenses, indemnities, damages, compensation, and any other amounts of whatsoever nature now or hereafter payable by any Obligor Subsidiary under or in connection with any Intercompany Loan;
(d) all Related Rights, including, without limitation, all rights to demand, sue for, recover, compound, receive, and give valid receipts and discharges for all such amounts;
(e) all rights to enforce, whether by legal proceedings or otherwise, any term, condition, covenant, representation, warranty, or undertaking of any Obligor Subsidiary under any Intercompany Loan;
(f) all rights to amend, vary, waive, supplement, novate, terminate, or otherwise modify any Intercompany Loan (subject to the restrictions set forth in Section 4.2 of this Deed);
(g) the benefit of all representations, warranties, undertakings, covenants, and indemnities given by any Obligor Subsidiary or any other person under or in connection with any Intercompany Loan;
(h) all rights under any guarantee, indemnity, security, letter of credit, standby letter of credit, or other form of credit support given by any person in connection with any Intercompany Loan; and
(i) all proceeds (whether in cash or in kind) of the foregoing, including all proceeds of any claim, action, or judgment arising out of or in connection with any Intercompany Loan.
Section 2.3 — First-Priority Security
(a) The assignment effected by this Deed constitutes a first-priority security interest in the Assigned Receivables. The Assignor represents and warrants to the Security Agent (for the benefit of the Secured Parties) that, as of the date of this Deed and as of the closing date of the offering of the Notes, no prior security interest, lien, charge, encumbrance, assignment, mortgage, pledge, hypothecation, or other third-party right of any kind exists or subsists over any of the Assigned Receivables, other than as permitted under the Indenture and as created by this Deed.
(b) The Assignor undertakes to the Security Agent that it will not create, grant, or permit to subsist any security interest, lien, charge, encumbrance, assignment, or other third-party right over any of the Assigned Receivables that would rank in priority to or pari passu with the security created by this Deed, except as expressly permitted by the terms of the Indenture.
Section 2.4 — Continuing Security
(a) The assignment effected by this Deed constitutes a continuing security for the due and punctual payment, performance, and discharge of all Secured Obligations. This Deed shall remain in full force and effect until the Reassignment Date, notwithstanding any intermediate payment, settlement of account, or any other matter or circumstance whatsoever.
(b) The security created by this Deed shall not be satisfied, discharged, or otherwise affected by:
(i) any intermediate payment or partial discharge of the Secured Obligations;
(ii) any settlement of account, or any variation, renewal, or extension of the Secured Obligations or any Transaction Document;
(iii) any change in the constitution, name, or corporate status of any party to any Transaction Document;
(iv) any invalidity, irregularity, unenforceability, or deficiency of any Secured Obligation or any Transaction Document;
(v) any insolvency, winding up, dissolution, judicial management, receivership, or analogous proceedings affecting any party to any Transaction Document;
(vi) any act, omission, event, or circumstance that, but for this provision, would or might operate to release, impair, or otherwise affect the liability of the Assignor under this Deed or the rights of the Security Agent hereunder; or
(vii) any other matter or thing whatsoever.
(c) This Deed is in addition to, and is not in substitution for or derogation from, any other security now or at any time hereafter held by the Security Agent or any other Secured Party for the Secured Obligations. The rights and remedies of the Security Agent under this Deed are cumulative with, and not exclusive of, the rights and remedies provided by law, equity, the Indenture, the Intercreditor Agreement, and any other Transaction Document.
ARTICLE 3 — REPRESENTATIONS AND WARRANTIES
Section 3.1 — Representations and Warranties of the Assignor
The Assignor represents and warrants to the Security Agent (for the benefit of the Secured Parties) as of the date of this Deed and as of the closing date of the offering of the Notes, as follows:
(a) Due Incorporation and Good Standing. TFPL is a private company limited by shares duly incorporated and validly existing under the laws of the Republic of Singapore, with UEN 202209345K, and has its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981. TFPL has been duly incorporated and is in good standing under the laws of its jurisdiction of incorporation and has the legal capacity and power to own its assets, to carry on its business, and to enter into and perform its obligations under this Deed and the other Transaction Documents to which it is a party.
(b) Corporate Power and Authority. TFPL has full corporate power and authority to enter into, execute, deliver, and perform its obligations under this Deed and to grant the security contemplated hereby. The sole director of TFPL, Marina Demetriou, has duly authorized the execution, delivery, and performance of this Deed by TFPL, and all necessary corporate action has been taken for such purpose. No further act, approval, authorization, consent, or resolution of the shareholders, directors, or any other person is required in connection with the execution, delivery, and performance by TFPL of this Deed.
(c) Legal Validity and Enforceability. This Deed has been duly executed and delivered by TFPL and constitutes the legal, valid, and binding obligation of TFPL, enforceable against TFPL in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, judicial management, and similar laws affecting creditors' rights generally, (ii) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and (iii) any applicable requirements of good faith, fair dealing, and reasonableness.
(d) No Conflicts. The execution, delivery, and performance of this Deed by TFPL does not and will not:
(i) contravene, conflict with, or result in a breach of any provision of the constitution (including the memorandum and articles of association) of TFPL;
(ii) contravene, conflict with, or result in a breach of any applicable law, regulation, order, judgment, decree, or directive of any governmental authority having jurisdiction over TFPL or any of its assets;
(iii) contravene, conflict with, or result in a breach of, or give rise to a right of termination, cancellation, or acceleration under, or constitute a default under, any material agreement, contract, instrument, or obligation to which TFPL is a party or by which TFPL or any of its assets is bound; or
(iv) result in the creation or imposition of any security interest, lien, charge, or encumbrance on any asset of TFPL (other than as created by this Deed).
(e) Ownership of Receivables. TFPL is the sole legal and beneficial owner of the Assigned Receivables, free and clear of any security interest, lien, charge, encumbrance, assignment, pledge, hypothecation, or other third-party right of any kind (other than as created by this Deed and as expressly permitted under the Indenture). TFPL has not entered into any factoring, receivables financing, or other arrangement in respect of the Assigned Receivables.
(f) Validity of Intercompany Loans. Each Intercompany Loan constitutes a legal, valid, and binding obligation of the relevant Obligor Subsidiary, enforceable against such Obligor Subsidiary in accordance with its terms, subject to customary enforceability qualifications. Each Intercompany Loan has been duly authorized, executed, and delivered by the relevant parties thereto and is in full force and effect.
(g) No Default. No event of default, breach, or potential event of default has occurred or is continuing under any Intercompany Loan, and no event or circumstance has occurred that, with the giving of notice, lapse of time, or both, would constitute an event of default under any Intercompany Loan. The Assignor has not received any notice from any Obligor Subsidiary alleging or asserting any default, breach, or dispute under any Intercompany Loan.
(h) Aggregate Amount. The aggregate principal amount outstanding under the Intercompany Loans as at the date of this Deed is $365,000,000 (three hundred sixty-five million United States Dollars), as set forth in Schedule 1, and no principal payments have been made by any Obligor Subsidiary under any Intercompany Loan prior to the date hereof.
(i) No Prior Assignment. TFPL has not previously assigned, transferred, charged, pledged, hypothecated, or otherwise encumbered any of the Assigned Receivables or any interest therein in favor of any third party, and no agreement, arrangement, or understanding exists for any such assignment, transfer, charge, pledge, hypothecation, or encumbrance.
(j) No Set-Off. To the best of TFPL's knowledge, no Obligor Subsidiary has, as of the date of this Deed, any right of set-off, combination of accounts, counterclaim, deduction, defense, or withholding against any amount payable by it under any Intercompany Loan that has not been disclosed in writing to the Security Agent prior to the execution of this Deed. No Obligor Subsidiary has asserted or threatened to assert any such right.
(k) Consents. All consents, approvals, authorizations, licenses, permits, registrations, filings, and notifications required in connection with the execution, delivery, and performance of this Deed (including, without limitation, any required filings with the Accounting and Corporate Regulatory Authority of Singapore ("ACRA") under the Companies Act 1967 of Singapore or any other applicable law) have been obtained, made, or are in the process of being obtained or made, and all such consents, approvals, and authorizations are in full force and effect and are not subject to any condition or qualification that has not been satisfied.
(l) No Litigation. There is no litigation, arbitration, mediation, administrative proceeding, investigation, or other legal or quasi-legal proceeding pending or, to the best of TFPL's knowledge, threatened against TFPL or any Obligor Subsidiary before any court, tribunal, arbitral body, governmental authority, or other body that would or might reasonably be expected to materially and adversely affect the Assigned Receivables, the validity or enforceability of any Intercompany Loan, or the ability of TFPL to perform its obligations under this Deed.
Section 3.2 — Repetition of Representations
Each of the representations and warranties set forth in Section 3.1 shall be deemed to be repeated by TFPL on each interest payment date under the Notes by reference to the facts and circumstances then existing. In the event that any such representation or warranty is or becomes untrue, inaccurate, or misleading in any material respect on any such date, TFPL shall promptly notify the Security Agent in writing of such fact and the circumstances giving rise thereto.
ARTICLE 4 — COVENANTS OF THE ASSIGNOR
Section 4.1 — Positive Covenants
TFPL hereby covenants and undertakes with the Security Agent (for the benefit of the Secured Parties) that, from the date of this Deed until the Reassignment Date, TFPL shall:
(a) Preservation of Receivables. Take all necessary and commercially reasonable actions to preserve, protect, maintain, and enforce the validity, enforceability, perfection, and collectability of the Assigned Receivables, and do nothing that would or might reasonably be expected to impair, diminish, or otherwise adversely affect the value, validity, enforceability, or collectability of the Assigned Receivables.
(b) Enforcement of Intercompany Loans. Diligently and in good faith enforce the terms and conditions of each Intercompany Loan and exercise all rights and remedies available to it as lender thereunder in a commercially reasonable manner (subject to Section 4.4 below and any applicable restrictions under the Indenture or the Intercreditor Agreement), including, without limitation, the right to demand and collect payment of all amounts due and payable by each Obligor Subsidiary under its respective Intercompany Loan.
(c) Notification of Default. Promptly (and in any event within five (5) Business Days) notify the Security Agent in writing upon becoming aware of: (i) any event of default or potential event of default under any Intercompany Loan; (ii) any material breach by any Obligor Subsidiary of any term or condition of any Intercompany Loan; (iii) any material dispute between TFPL and any Obligor Subsidiary regarding any Intercompany Loan; (iv) any claim, demand, or proceeding by or against any Obligor Subsidiary that could reasonably be expected to have a material adverse effect on the Assigned Receivables; or (v) any event or circumstance that could reasonably be expected to result in a material diminution in the value or collectability of the Assigned Receivables.
(d) Books and Records. Maintain accurate, complete, and up-to-date books, records, and accounts in respect of each Intercompany Loan and the Assigned Receivables, in accordance with applicable law and generally accepted accounting principles, and make such books, records, and accounts available for inspection and copying by the Security Agent (or its duly authorized agents, representatives, or professional advisors) upon reasonable prior notice during normal business hours.
(e) Information. Provide the Security Agent with such information regarding the Assigned Receivables, the Intercompany Loans, and the Obligor Subsidiaries as the Security Agent may reasonably request from time to time, including, without limitation, copies of any notices, correspondence, or communications sent or received by TFPL under or in connection with any Intercompany Loan.
(f) ACRA Filings. Promptly (and in any event within thirty (30) days of the date of this Deed) register or cause to be registered this assignment with the Accounting and Corporate Regulatory Authority of Singapore if and to the extent required under the Companies Act 1967 of Singapore (including, without limitation, Section 131 thereof) or any other applicable law, and provide evidence of such registration (including a copy of the registered charge form) to the Security Agent promptly upon completion of such registration.
(g) Further Assurance. At the request and cost of TFPL, from time to time execute and deliver such further deeds, documents, instruments, and assurances and take such further actions as the Security Agent may reasonably require for the purpose of perfecting, preserving, protecting, or enforcing the security created by this Deed, or for vesting in the Security Agent (or its nominee) the full benefit of the rights and powers conferred upon the Security Agent by this Deed, including, without limitation, the execution of any additional notices of assignment, acknowledgments, or other documents.
Section 4.2 — Negative Covenants (Restrictions on the Assignor)
TFPL hereby covenants and undertakes with the Security Agent (for the benefit of the Secured Parties) that, from the date of this Deed until the Reassignment Date, TFPL shall not, without the prior written consent of the Security Agent (acting on the instructions of the Trustee in accordance with the Indenture and the Intercreditor Agreement):
(a) amend, vary, supplement, restate, waive, novate, terminate, rescind, or otherwise modify any Intercompany Loan in any material respect, including, without limitation, any amendment that would change the identity of the borrower, alter the repayment terms, reduce the interest rate, extend the maturity, or release any security or guarantee provided in connection therewith;
(b) release, discharge, compound, or settle with any Obligor Subsidiary in respect of its obligations under any Intercompany Loan, or accept any composition or arrangement from any Obligor Subsidiary;
(c) create, grant, or permit to subsist any security interest, lien, charge, pledge, mortgage, hypothecation, assignment, encumbrance, or other third-party right of any kind over any of the Assigned Receivables (other than the security created by this Deed and any security permitted under the Indenture);
(d) sell, transfer, assign, convey, or otherwise dispose of any of the Assigned Receivables or any interest therein (other than as expressly permitted under the Indenture);
(e) subordinate, or agree to subordinate, any of the Assigned Receivables or the rights of TFPL under any Intercompany Loan to any other indebtedness, obligation, or liability of any Obligor Subsidiary or any other person;
(f) agree to, consent to, or acquiesce in any reduction in the interest rate, principal amount, or other amounts payable by any Obligor Subsidiary under any Intercompany Loan; or
(g) grant any extension of the maturity date, final repayment date, or any scheduled payment date of any Intercompany Loan beyond the maturity date of the Notes (October 15, 2029), or otherwise alter the payment or amortization schedule of any Intercompany Loan in a manner that could reasonably be expected to adversely affect the interests of the Secured Parties.
Section 4.3 — Collection of Receivables Prior to Enforcement
Prior to the occurrence of an Enforcement Event:
(a) TFPL shall be entitled to receive, retain, and apply all payments of principal, interest, and other amounts received from the Obligor Subsidiaries under the Intercompany Loans in the ordinary course of business, subject to compliance with the terms of the Indenture (including, without limitation, compliance with the restricted payments covenant, the asset sale covenant, and any other applicable covenants contained in the Indenture).
(b) TFPL shall apply all amounts received under the Intercompany Loans in accordance with the terms of the Indenture and the Intercreditor Agreement, and shall not use or apply any such amounts for any purpose not permitted by the Indenture.
(c) Following the occurrence of a Default (but prior to the occurrence of an Enforcement Event), the Security Agent may, by written notice to TFPL, direct TFPL to hold any and all amounts received under the Intercompany Loans in a designated segregated collection account maintained with a bank acceptable to the Security Agent (the "Collection Account"), and TFPL shall comply with any such direction. Amounts held in the Collection Account shall not be withdrawn, transferred, or applied by TFPL without the prior written consent of the Security Agent, except as required by the terms of the Indenture.
Section 4.4 — Collection After Enforcement Event
Upon and following the occurrence of an Enforcement Event:
(a) The Security Agent shall have the sole and exclusive right and authority to demand, collect, receive, and give valid receipts and discharges for all amounts of whatsoever nature payable by any Obligor Subsidiary under or in connection with any Intercompany Loan. From and after the occurrence of an Enforcement Event, all rights of TFPL to demand, collect, receive, and give receipts for such amounts shall cease.
(b) TFPL shall immediately cease collecting, receiving, or accepting any amounts under the Intercompany Loans and shall promptly pay over to the Security Agent any amounts received by TFPL after the occurrence of the Enforcement Event, without deduction, set-off, or counterclaim.
(c) TFPL shall, at the direction and request of the Security Agent, promptly deliver a written notice substantially in the form set forth in Schedule 4 (an "Enforcement Notice") to each Obligor Subsidiary, directing each Obligor Subsidiary to make all payments under the relevant Intercompany Loan directly to the Security Agent or to such account as the Security Agent may designate in writing.
(d) All amounts received by the Security Agent pursuant to this Section 4.4 or otherwise in connection with the enforcement of the security created by this Deed shall be held by the Security Agent and applied in accordance with the waterfall provisions set forth in the Intercreditor Agreement.
Section 4.5 — Notification to Obligor Subsidiaries
(a) TFPL shall, promptly following the execution and delivery of this Deed (and in any event within five (5) Business Days thereof), deliver a Notice of Assignment substantially in the form set forth in Schedule 2 hereto (a "Notice of Assignment") to each Obligor Subsidiary, notifying each Obligor Subsidiary of the assignment of the relevant Intercompany Loan to the Security Agent pursuant to this Deed.
(b) TFPL shall procure that each Obligor Subsidiary acknowledges receipt of the Notice of Assignment and confirms its acceptance of the assignment and its agreement to comply with payment directions from the Security Agent following an Enforcement Event, by executing and delivering to the Security Agent an Acknowledgment substantially in the form set forth in Schedule 3 hereto (an "Acknowledgment") within ten (10) Business Days of receipt of the Notice of Assignment.
(c) TFPL shall deliver to the Security Agent the original executed copies of each Notice of Assignment and each Acknowledgment promptly upon receipt thereof.
ARTICLE 5 — ENFORCEMENT
Section 5.1 — Enforcement Rights
(a) Upon the occurrence of an Enforcement Event, the Security Agent shall be entitled (but not obligated, subject to Section 5.4) to exercise all rights, powers, and remedies available to it under this Deed, the Indenture, the Intercreditor Agreement, and applicable law in respect of the Assigned Receivables, including, without limitation, all rights and remedies of a secured creditor under the laws of the Republic of Singapore.
(b) Without limiting the generality of the foregoing, upon the occurrence of an Enforcement Event, the Security Agent may, in its absolute discretion (acting on the instructions of the Trustee in accordance with the Indenture and the Intercreditor Agreement):
(i) demand payment directly from any Obligor Subsidiary of all or any amounts due and payable (or to become due and payable) under any Intercompany Loan and take all steps necessary or desirable to enforce such payment;
(ii) sue for, recover, compound, compromise, settle, and give valid receipts and discharges for all or any amounts due or to become due under any Intercompany Loan, and execute any release, waiver, or other document in connection therewith;
(iii) sell, transfer, assign, or otherwise dispose of the Assigned Receivables (in whole or in part) to any third party on such terms and conditions and at such time or times as the Security Agent may determine in its sole discretion, including by way of public or private sale, auction, tender, or negotiated transaction;
(iv) exercise all voting rights, consent rights, approval rights, waiver rights, and all other rights and powers of TFPL under or in connection with the Intercompany Loans, as if the Security Agent were the absolute owner of the Assigned Receivables;
(v) appoint a receiver, receiver and manager, or judicial manager over all or any part of the Assigned Receivables, with such powers as the Security Agent may determine (to the extent permitted by applicable law);
(vi) institute, continue, discontinue, settle, or compromise any legal proceedings, arbitration proceedings, or other actions or claims in the name of TFPL or in its own name in connection with the Assigned Receivables; and
(vii) take any other action or exercise any other right or remedy that a secured creditor may lawfully take or exercise under the laws of the Republic of Singapore or any other applicable jurisdiction.
(c) TFPL shall cooperate fully with the Security Agent in connection with any enforcement action and shall, at the request of the Security Agent, execute and deliver all documents, provide all information, and take all other actions as the Security Agent may reasonably require for the purpose of exercising its rights and remedies under this Deed.
Section 5.2 — Application of Proceeds
(a) All proceeds realized from the enforcement of the security created by this Deed, including, without limitation, all amounts received from the Obligor Subsidiaries, all proceeds of sale of the Assigned Receivables, and all other amounts recovered by the Security Agent, shall be held by the Security Agent and applied in accordance with the waterfall provisions set forth in the Intercreditor Agreement.
(b) Subject to the terms of the Intercreditor Agreement and any mandatory provisions of applicable law, the general order of application of proceeds shall be as follows:
(i) first, in payment of all costs, charges, fees, and expenses incurred by the Security Agent and the Trustee in connection with the enforcement of the security created by this Deed and the other Security Documents, including, without limitation, all legal fees, professional advisors' fees, receiver's remuneration, and other costs of realization;
(ii) second, in or towards payment of all amounts due and payable to the Secured Parties under the Notes and the Indenture (including principal, accrued and unpaid interest, premium (if any), make-whole amounts, and all other amounts), applied pro rata among the Secured Parties in proportion to the amounts respectively due and owing to each of them; and
(iii) third, any surplus remaining after the full and final discharge of all Secured Obligations shall be paid to TFPL or as otherwise directed by a court of competent jurisdiction.
(c) In the event that the proceeds of enforcement are insufficient to discharge all Secured Obligations in full, the deficiency shall remain an obligation of the Co-Issuers and the Guarantors in accordance with the terms of the Indenture.
Section 5.3 — Power of Attorney
(a) TFPL hereby irrevocably and unconditionally appoints the Security Agent as its true and lawful attorney-in-fact, with full power and authority, acting in the name and on behalf of TFPL, upon the occurrence of an Enforcement Event, to do all or any of the following:
(i) execute any deed, document, instrument, notice, direction, consent, waiver, amendment, or other writing in the name of TFPL in connection with, or for the purpose of giving effect to, the rights, powers, and remedies of the Security Agent under this Deed in respect of the Assigned Receivables;
(ii) give any notice, demand, direction, or instruction to any Obligor Subsidiary or any other person in the name of TFPL in connection with the Intercompany Loans;
(iii) commence, prosecute, defend, settle, or discontinue any legal proceedings, arbitration proceedings, or other actions or claims in the name of TFPL in connection with the Assigned Receivables;
(iv) receive, endorse, deposit, and give receipts for any payment, instrument, or other document received in connection with the Assigned Receivables; and
(v) take any other action in the name of TFPL that the Security Agent considers necessary or desirable for the purpose of exercising its rights and remedies under this Deed.
(b) This power of attorney is given by way of security and is irrevocable. It is coupled with an interest and shall survive the dissolution, winding up, liquidation, judicial management, or insolvency of TFPL, and shall not be revoked or terminated by any act or event, including, without limitation, the death, incapacity, or bankruptcy of any director, officer, or shareholder of TFPL.
(c) TFPL hereby ratifies and confirms, and agrees to ratify and confirm, all acts and things lawfully done or caused to be done by the Security Agent in the exercise of the powers conferred by this Section 5.3.
Section 5.4 — No Duty to Enforce
(a) The Security Agent shall have no obligation to enforce or realize the security created by this Deed, or to take any other action in connection with the Assigned Receivables, unless and until it has been instructed to do so by the Trustee in accordance with the provisions of the Indenture and the Intercreditor Agreement.
(b) The Security Agent shall not be liable to the Assignor, any Secured Party, or any other person for any loss, damage, liability, cost, or expense arising from or in connection with: (i) any delay in enforcing or any failure to enforce the security created by this Deed (except to the extent attributable to the Security Agent's own gross negligence or willful misconduct); (ii) any depreciation in the value of the Assigned Receivables; or (iii) any act or omission of any Obligor Subsidiary.
(c) The Security Agent shall not be required to take any action that, in its reasonable opinion, would or might expose it to personal liability or to any expense or obligation for which it has not received adequate indemnification or security.
ARTICLE 6 — REASSIGNMENT
Section 6.1 — Reassignment on Discharge
(a) Upon the Reassignment Date (being the date on which all Secured Obligations have been irrevocably and unconditionally paid and discharged in full and no commitment, obligation, or liability remains outstanding under the Transaction Documents that could give rise to any further Secured Obligation), the Security Agent shall, at the request and cost of TFPL, reassign and retransfer to TFPL (or as TFPL may direct in writing) all of its right, title, and interest in and to the Assigned Receivables, free and clear of the security created by this Deed.
(b) The Security Agent shall, promptly following receipt of a written request from TFPL (accompanied by a certificate from TFPL confirming that all Secured Obligations have been irrevocably and unconditionally paid and discharged in full, which certificate the Security Agent shall be entitled to rely upon without further inquiry), execute and deliver to TFPL such deeds, documents, instruments, and assurances as TFPL may reasonably require to effect such reassignment, including, without limitation:
(i) a deed of reassignment of the Assigned Receivables in favor of TFPL;
(ii) notices to each Obligor Subsidiary confirming the discharge of the security and the cessation of any obligation to make payments to the Security Agent; and
(iii) any filings or registrations required to be made with ACRA or any other governmental authority in connection with the discharge of the security created by this Deed.
(c) The reassignment shall be made without recourse, representation, or warranty of any kind by the Security Agent (other than a warranty that the Security Agent has not itself created any encumbrance over the Assigned Receivables), and at the sole cost and expense of TFPL.