CONFIDENTIAL TREATMENT REQUESTED — CALDERWOOD & HARKNESS LLP WORK PRODUCT
SHARE PLEDGE AGREEMENT
Pledge of 100% of the Issued Shares in Thalassa Finance Pte. Ltd. (UEN 202209345K)
by
Thalassa Shipping & Logistics SA (as Pledgor)
in favor of
Atlas Collateral Agency Pte. Ltd. (as Security Agent, acting for and on behalf of itself and the Secured Parties)
Dated as of [●], 2022
Governing Law: Laws of the Republic of Singapore
Prepared by:
Calderwood & Harkness LLP 125 Broad Street New York, NY 10004 United States
Matter No. 1044-00004 Client No. 80214-TSL
Robert Adeyemi, Responsible Partner Brendan Walsh, Lead Associate
NEAR-FINAL DRAFT
TABLE OF CONTENTS
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SHARE PLEDGE AGREEMENT
THIS SHARE PLEDGE AGREEMENT (this "Agreement") is made on [●], 2022
BETWEEN:
1. THALASSA SHIPPING & LOGISTICS SA, a Société Anonyme organized and existing under the laws of the Hellenic Republic (Greek GEMI No. 148276201000), having its registered office at 42 Akti Miaouli, Piraeus 185 35, Greece (hereinafter referred to as "TSL" or the "Pledgor"); and
2. ATLAS COLLATERAL AGENCY PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (UEN 200115678R), having its registered office at 80 Robinson Road, #02-00, Singapore 068898 (hereinafter referred to as "ACA" or the "Security Agent"), acting for and on behalf of itself and the Secured Parties (as defined herein).
Each of the Pledgor and the Security Agent is referred to individually as a "Party" and collectively as the "Parties."
RECITALS
(A) The Offering. Thalassa Shipping & Logistics SA ("TSL") and Thalassa Finance Pte. Ltd., a private company limited by shares incorporated in the Republic of Singapore (UEN 202209345K) ("TFPL" or the "Company"), propose to co-issue $400,000,000 in aggregate principal amount of Senior Secured Notes due 2029 (the "Notes"). The Notes are to bear interest at the rate of 8.750% per annum, payable semi-annually in arrear on April 15 and October 15 of each year, commencing on April 15, 2023. The Notes are to mature on October 15, 2029. The Notes are to be issued pursuant to an Indenture (near-final, 5th draft, dated September 6, 2022) (the "Indenture") among the Co-Issuers, the Guarantor Subsidiaries (as defined below), Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D) as Trustee (the "Trustee" or "VTC"), and Atlas Collateral Agency Pte. Ltd. as Security Agent. The Notes are to be offered and sold in reliance upon the exemption from registration provided by Rule 144A under the United States Securities Act of 1933, as amended (the "Securities Act"), and pursuant to Regulation S under the Securities Act. The proposed international securities identification numbers for the Notes are XS2498731056 (Regulation S Global Note) and US87265TAA10 (Rule 144A Global Note); the CUSIP number is 87265T AA1; and the Common Code is 249873105.
(B) The Security Package. The Notes are to be secured by a first-priority security interest over, among other things: (i) first-priority ship mortgages over twenty-eight (28) Collateral Vessels identified in the Indenture, which vessels have been appraised at an aggregate fair market value of $1,175,000,000 (representing a collateral coverage ratio of approximately 2.94x the aggregate principal amount of the Notes); (ii) assignments of earnings, insurances, and requisition compensation in respect of each of the Collateral Vessels; (iii) a pledge of 100% of the issued equity interest in TFPL (being the subject of this Agreement) and a pledge of 100% of the issued equity interest in each fleet-owning Guarantor Subsidiary; and (iv) an assignment of intercompany loan receivables from TFPL to the fleet-owning subsidiaries in the aggregate amount of $365,000,000. This Agreement constitutes one of the Security Documents forming part of the broader security package for the Notes.
(C) The Pledged Shares. TSL is the sole shareholder of TFPL, holding 100% of the issued and paid-up share capital of TFPL. TFPL is a private company limited by shares duly incorporated and validly existing under the laws of the Republic of Singapore (UEN 202209345K), with its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981. The sole director of TFPL is Marina Demetriou, who also serves as the Chief Financial Officer of TSL. TFPL was established for the purpose of serving as the co-issuer vehicle for the Notes and holds intercompany loans to the fleet-owning subsidiaries of TSL. The Pledgor now proposes to pledge all of its shares in TFPL in favor of the Security Agent as part of the security package for the Notes.
(D) The Intercreditor Agreement. The Parties acknowledge and agree that the rights and obligations of the Security Agent, the Trustee, and the Secured Parties in respect of the collateral securing the Notes (including the Pledged Shares) are governed by and subject to the terms of the Intercreditor Agreement (near-final, 3rd draft) (the "Intercreditor Agreement") among the Co-Issuers, the Guarantor Subsidiaries, ACA (as Security Agent), and VTC (as Trustee). The Intercreditor Agreement governs, among other things, the priority of the Security Documents, the exercise of enforcement rights, and the waterfall of proceeds upon any enforcement or realization of collateral.
(E) The Guarantees. The obligations of the Co-Issuers under the Notes and the Indenture are to be guaranteed by upstream guarantees from each of the following Guarantor Subsidiaries: (i) Thalassa Dry Bulk Operations Ltd., a company organized under the laws of Malta; (ii) Thalassa Container Feeder Ltd., a company organized under the laws of the Republic of the marshall Islands; (iii) Thalassa Port Services FZCO, a free zone company organized in Dubai, United Arab Emirates; and (iv) Thalassa Freight Solutions Pte. Ltd., a company incorporated in the Republic of Singapore. In addition, the obligations of the Co-Issuers are to be supported by a limited parent guarantee from Kallistratos Maritime Holdings Ltd., a company incorporated in the British Virgin Islands, which guarantee is capped at $50,000,000 in aggregate.
(F) Purpose. This Agreement is entered into for the purpose of securing the due and punctual payment and performance of all present and future obligations and liabilities of the Co-Issuers and the Guarantors under the Indenture, the Notes, the Purchase Agreement, and the other Transaction Documents. The Pledgor has agreed to grant the security interest contemplated by this Agreement as a condition to the issuance of the Notes.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS AND INTERPRETATION
Section 1.1 — Definitions
In this Agreement, unless the context otherwise requires, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the Indenture.
"ACRA" means the Accounting and Corporate Regulatory Authority of Singapore.
"Agreement" means this Share Pledge Agreement, including all Schedules and Annexes hereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
"ACA" or "Security Agent" means Atlas Collateral Agency Pte. Ltd., a private company limited by shares incorporated under the laws of the Republic of Singapore (UEN 200115678R), having its registered office at 80 Robinson Road, #02-00, Singapore 068898, in its capacity as security agent under this Agreement, the Indenture, the Intercreditor Agreement, and the other Security Documents, acting for and on behalf of itself and the Secured Parties, and includes any successor Security Agent appointed in accordance with the terms of this Agreement and the Indenture.
"Business Day" means a day (other than a Saturday, Sunday, or public holiday) on which commercial banks are open for general business in each of Singapore, New York City (New York, United States), London (United Kingdom), Athens (Hellenic Republic), and Zürich (Switzerland).
"Closing Date" means the date of the closing and settlement of the offering of the Notes, originally targeted as October 15, 2022, or such other date as the Co-Issuers and the Initial Purchasers may agree.
"Co-Issuers" means, collectively, TSL and TFPL, in their capacity as co-issuers of the Notes under the Indenture.
"Collateral Vessels" means the twenty-eight (28) designated vessels, out of the fifty (50) vessels in the TSL fleet, over which first-priority ship mortgages are to be granted in favor of the Security Agent as part of the security package for the Notes, as more particularly described in Schedule 2 to the Indenture.
"Company" or "TFPL" means Thalassa Finance Pte. Ltd., a private company limited by shares incorporated under the laws of the Republic of Singapore (UEN 202209345K), having its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981.
"Constituent Documents" means the memorandum and articles of association and/or constitution of TFPL, as filed with ACRA and as in effect from time to time, including any amendments thereto made in accordance with this Agreement.
"Distributions" means all dividends (whether paid in cash, in kind, or in shares), distributions, returns of capital, or other payments of any kind declared, made, or paid on or in respect of the Pledged Shares.
"Enforcement Event" means an "Event of Default" as defined in Section 6.01 of the Indenture, and such term shall have the meaning given to it therein.
"Guarantor Subsidiaries" means, collectively, (i) Thalassa Dry Bulk Operations Ltd., a company organized under the laws of Malta; (ii) Thalassa Container Feeder Ltd., a company organized under the laws of the Republic of the marshall Islands; (iii) Thalassa Port Services FZCO, a free zone company organized in Dubai, United Arab Emirates; and (iv) Thalassa Freight Solutions Pte. Ltd., a company incorporated under the laws of the Republic of Singapore; and "Guarantor Subsidiary" means any one of them.
"Indenture" means the indenture (near-final, 5th draft, dated September 6, 2022) to be entered into among the Co-Issuers, the Guarantor Subsidiaries, VTC (as Trustee), and ACA (as Security Agent), pursuant to which the Notes are to be issued, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Initial Purchasers" means, collectively, Anchor Bay Securities LLC, a limited liability company organized under the laws of the State of Delaware, having its principal place of business at 599 Lexington Avenue, 28th Floor, New York, NY 10022, United States, and Halcyon Partners International Ltd., a company incorporated under the laws of England and Wales, having its principal place of business at 25 Old Broad Street, London EC2N 1HQ, United Kingdom.
"Intercreditor Agreement" means the intercreditor agreement (near-final, 3rd draft) to be entered into among the Co-Issuers, the Guarantor Subsidiaries, ACA (as Security Agent), and VTC (as Trustee), governing the relative priority of the Security Documents, the exercise of enforcement rights, the application and waterfall of proceeds, and related matters, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Notes" means the $400,000,000 in aggregate principal amount of 8.750% Senior Secured Notes due 2029 to be co-issued by the Co-Issuers pursuant to the Indenture.
"Pledged Property" means the Pledged Shares, together with all Related Rights.
"Pledged Shares" means (i) 100% of the issued and paid-up ordinary shares of TFPL, being [●] ordinary shares of par value S$[●] each, all of which are held by the Pledgor, together with (ii) any additional shares in TFPL hereafter issued to, acquired by, or otherwise held by the Pledgor at any time while this Agreement remains in effect, whether issued pursuant to a bonus issue, rights issue, stock split, consolidation, reclassification, or otherwise.
"Pledgor" means Thalassa Shipping & Logistics SA, a Société Anonyme organized and existing under the laws of the Hellenic Republic (Greek GEMI No. 148276201000), having its registered office at 42 Akti Miaouli, Piraeus 185 35, Greece.
"Purchase Agreement" means the purchase agreement (near-final draft) to be entered into among the Co-Issuers, the Guarantor Subsidiaries, and the Initial Purchasers in connection with the offering and sale of the Notes, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Related Rights" means all rights, benefits, privileges, and entitlements of any kind attaching to, arising from, or in connection with the Pledged Shares, including without limitation: (a) all dividends, distributions, returns of capital, and other payments (whether in cash, in shares, or in kind) declared, made, or payable on or in respect of the Pledged Shares; (b) all voting rights and rights to attend and participate in general meetings and to receive notices of general meetings; (c) all pre-emptive rights, subscription rights, and rights of first refusal; (d) all bonus shares, rights shares, and other securities issued, distributed, or receivable in respect of, in substitution for, or in exchange for the Pledged Shares; (e) all claims, rights of action, and choses in action in respect of or arising from the Pledged Shares; and (f) all proceeds of the foregoing.
"Secured Obligations" means all present and future obligations and liabilities (whether actual or contingent, whether owed jointly or severally, whether as principal or surety, and whether owed by the Pledgor, any Co-Issuer, or any Guarantor) under or in connection with the Indenture, the Notes, the Purchase Agreement, the Intercreditor Agreement, the Security Documents, and the other Transaction Documents, including without limitation all obligations in respect of principal, interest (including default interest and post-petition interest), premium (if any), fees, indemnities, costs, expenses, and other amounts payable thereunder.
"Secured Parties" means, collectively, (i) VTC (in its capacity as Trustee), (ii) ACA (in its capacity as Security Agent), and (iii) the holders of the Notes from time to time.
"Security Documents" means, collectively, (i) this Agreement; (ii) the ship mortgages over the Collateral Vessels; (iii) the deeds of assignment of earnings and insurances in respect of the Collateral Vessels; (iv) the share pledge agreements in respect of the Guarantor Subsidiaries; (v) the assignment of intercompany loan receivables from TFPL to the fleet-owning subsidiaries; and (vi) any other document designated as a "Security Document" under the Indenture or the Intercreditor Agreement.
"Singapore" means the Republic of Singapore.
"Transaction Documents" means, collectively, the Indenture, the Notes, the Purchase Agreement, the Registration Rights Agreement, the Intercreditor Agreement, the Security Documents, the Paying Agent and Transfer Agent Agreement, and each other document designated as a "Transaction Document" under the Indenture, and "Transaction Document" means any one of them.
"Trustee" or "VTC" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd., a private company limited by shares incorporated under the laws of the Republic of Singapore (UEN 199804782D), having its registered office at 80 Robinson Road, #02-00, Singapore 068898, in its capacity as trustee under the Indenture, and includes any successor trustee appointed in accordance with the terms of the Indenture.
Section 1.2 — Interpretation
In this Agreement, unless the context otherwise requires:
(a) headings and sub-headings are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement;
(b) references to this "Agreement," the "Indenture," or any other document include such document as amended, restated, supplemented, novated, or otherwise modified from time to time in accordance with its terms;
(c) references to any statute, enactment, regulation, or statutory provision include any statute, enactment, regulation, or statutory provision that amends, extends, consolidates, re-enacts, or replaces the same, and any orders, rules, regulations, instruments, or other subordinate legislation made under the relevant statute or statutory provision;
(d) words importing the singular include the plural and vice versa, and words importing a gender include every gender;
(e) references to a "person" include any individual, corporation, company, partnership, limited liability company, joint venture, trust, unincorporated association, governmental authority, or other entity of whatever nature;
(f) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation" and shall not be construed to limit any general statement that precedes them to the specific or similar items or matters immediately following them;
(g) references to any Party shall include its successors and permitted assigns;
(h) references to Articles, Sections, Schedules, and Annexes are references to Articles and Sections of, and Schedules and Annexes to, this Agreement;
(i) references to "dollars," "$," or "US$" are references to the lawful currency of the United States of America;
(j) references to "S$" are references to the lawful currency of the Republic of Singapore; and
(k) any capitalized term used but not defined in this Agreement shall have the meaning given to it in the Indenture.
Section 1.3 — Inconsistency with Intercreditor Agreement
In the event of any inconsistency or conflict between the provisions of this Agreement and the provisions of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall prevail to the extent of such inconsistency or conflict, and the Parties shall be bound by the terms of the Intercreditor Agreement in relation to such matters. The Pledgor acknowledges that it has received a copy of the Intercreditor Agreement (near-final, 3rd draft) and is aware of its terms and provisions.
ARTICLE 2 — PLEDGE AND SECURITY INTEREST
Section 2.1 — Grant of Pledge
As continuing security for the due and punctual payment and performance of all Secured Obligations, the Pledgor hereby irrevocably and unconditionally:
(a) pledges;
(b) assigns by way of security; and
(c) grants a first-priority security interest in and over,
all of its right, title, and interest in and to the Pledged Property (being 100% of the issued shares in TFPL, together with all Related Rights) in favor of the Security Agent, acting for and on behalf of the Secured Parties.
The pledge and security interest created by this Section 2.1 extends to all shares in TFPL now owned or hereafter acquired by the Pledgor at any time while this Agreement remains in effect, including without limitation any shares issued to the Pledgor pursuant to a bonus issue, rights issue, stock split, share consolidation, reclassification, or any other corporate action of TFPL. Any such additional shares shall, immediately upon acquisition by the Pledgor, become part of the Pledged Property and shall be subject to the pledge and security interest created by this Agreement without the need for any further act, instrument, or document, although the Pledgor shall comply with the perfection requirements set forth in Article 3.
Section 2.2 — Scope of Pledged Property
The Pledged Property subject to the pledge and security interest created by this Agreement includes, without limitation, the following:
(a) all ordinary shares of TFPL, currently [●] ordinary shares of par value S$[●] per share, representing 100% of the issued and paid-up share capital of TFPL;
(b) all dividends, whether in cash, shares, or in kind, declared or paid on or in respect of the Pledged Shares, at any time while this Agreement remains in effect;
(c) all proceeds of any sale, transfer, exchange, conversion, redemption, repurchase, or other disposition of the Pledged Shares, whether voluntary or involuntary;
(d) all voting rights and other rights, powers, privileges, and benefits attaching to or arising from the Pledged Shares, including the right to attend and vote at general meetings, the right to receive notices of general meetings, and the right to propose and pass resolutions;
(e) all claims, rights of action, and choses in action of the Pledgor in respect of or arising from the Pledged Shares, including any claims against TFPL, its directors, or any third party;
(f) all share certificates (or the functional equivalent thereof, including electronic records maintained by ACRA or TFPL's share registrar) representing or evidencing the Pledged Shares;
(g) all additional shares, bonus shares, rights shares, and other securities at any time received, receivable, or distributed in respect of, in substitution for, or in exchange for the Pledged Shares, whether by way of bonus issue, rights issue, stock split, consolidation, reclassification, merger, or otherwise;
(h) all pre-emptive rights, subscription rights, rights of first refusal, and other similar rights attaching to or arising from the Pledged Shares; and
(i) all proceeds of any and all of the foregoing, in whatever form.
Section 2.3 — Continuing Security
The pledge and security interest created by this Agreement constitutes continuing security for the Secured Obligations and shall not be satisfied, discharged, or otherwise affected by any intermediate payment or satisfaction of any part of the Secured Obligations. The pledge shall remain in full force and effect until all Secured Obligations have been irrevocably and unconditionally paid, performed, and discharged in full in accordance with their terms, at which time the pledge shall be released in accordance with Article 8. No change, modification, or amendment to the terms of the Secured Obligations, no granting of time or indulgence to any person, no release of any other security held for the Secured Obligations, and no other dealing, omission, or event which, but for this provision, would or might operate to reduce, release, or otherwise prejudice the pledge, shall in any way affect or impair the security constituted by this Agreement.
Section 2.4 — No Obligation to Advance
Nothing in this Agreement shall be construed as obligating the Security Agent, the Trustee, or any Secured Party to make any advance, extend any credit, or provide any financial accommodation to the Pledgor, the Company, or any other person. The obligations of the Pledgor under this Agreement are independent of, and are not conditional upon, any obligation of any Secured Party.
ARTICLE 3 — PERFECTION OF SECURITY
Section 3.1 — Delivery of Share Certificates
The Pledgor shall, on or prior to the Closing Date (originally targeted as October 15, 2022), deliver to the Security Agent (or to such custodian or nominee as the Security Agent may designate in writing) the following:
(a) the original share certificates (or equivalent documents of title) representing all of the Pledged Shares, duly endorsed in blank or accompanied by duly executed but undated instruments of transfer in blank (or in the name of the Security Agent or its nominee, as the Security Agent may direct);
(b) duly executed share transfer forms in the form set forth in Schedule 2 hereto, with the transferee, date, and consideration fields left blank, signed by a duly authorized signatory of the Pledgor as transferor; and
(c) such other documents, instruments, and assurances as the Security Agent may reasonably require to perfect the security interest created by this Agreement under the laws of the Republic of Singapore.
In the event that TFPL does not issue physical share certificates for the Pledged Shares (whether because its constitution permits the non-issuance of share certificates for a private company or otherwise), the Pledgor shall procure that: (i) TFPL's register of members reflects the existence of the pledge and records the Security Agent as having a registered interest in the Pledged Shares; and (ii) the Security Agent is furnished with a certified extract from TFPL's register of members confirming such notation.
Section 3.2 — Registration
The Pledgor shall, promptly following the execution of this Agreement and in any event on or prior to the Closing Date, procure that:
(a) TFPL's register of members contains a clear and conspicuous notation of the pledge and security interest created by this Agreement over the Pledged Shares, such notation to be in form and substance satisfactory to the Security Agent;
(b) any filings, registrations, or notifications required to be made with ACRA or any other governmental or regulatory authority in Singapore in connection with the creation, perfection, or maintenance of the security interest created by this Agreement are duly made in a timely manner;
(c) all fees payable to ACRA or any other governmental or regulatory authority in connection with such filings, registrations, or notifications are duly paid; and
(d) any stamp duty payable in Singapore in respect of the creation of this pledge, the delivery of the blank share transfer forms, or any other document executed in connection with this Agreement is duly assessed and paid.
The Pledgor shall deliver to the Security Agent evidence of compliance with each of the foregoing requirements promptly upon completion.
Section 3.3 — Further Assurance — Share Transfers
Without limiting the generality of Section 3.1, the Pledgor shall deliver to the Security Agent duly executed blank share transfer instruments in the form prescribed under TFPL's constitution and applicable Singapore law, in such number as the Security Agent may reasonably require, sufficient to enable the Security Agent (or its nominee) to effect a valid transfer of all or any portion of the Pledged Shares upon the enforcement of the pledge in accordance with Article 6. Each such share transfer instrument shall be signed by a duly authorized signatory of the Pledgor as transferor, with the transferee, date, and consideration fields left blank.
Section 3.4 — After-Acquired Shares
If the Pledgor acquires, receives, or otherwise becomes the holder of any additional shares in TFPL at any time while this Agreement remains in effect (whether by way of bonus issue, rights issue, stock split, consolidation, reclassification, new subscription, or otherwise):
(a) such additional shares shall automatically and without further act become part of the Pledged Shares and the Pledged Property and shall be subject to the pledge and security interest created by this Agreement;
(b) the Pledgor shall immediately (and in any event within three (3) Business Days) notify the Security Agent in writing of the acquisition of such additional shares, specifying the number, class, par value, and certificate numbers (if any) of the additional shares; and
(c) the Pledgor shall deliver to the Security Agent the original share certificates (or equivalent documents of title) representing such additional shares, together with duly executed blank share transfer forms in respect thereof, in accordance with the requirements of Sections 3.1 and 3.3.
ARTICLE 4 — REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR
The Pledgor makes the representations and warranties set forth in this Article 4 to the Security Agent (for and on behalf of itself and the Secured Parties) as of the date of this Agreement and as of the Closing Date (and, where indicated, on a continuing basis).
Section 4.1 — Organization and Standing
TSL is a Société Anonyme duly organized, validly existing, and in good standing under the laws of the Hellenic Republic, registered with the General Commercial Registry of Greece under GEMI No. 148276201000. TSL has full corporate power and authority to own, hold, and dispose of the Pledged Shares and to enter into, deliver, and perform its obligations under this Agreement and each other Transaction Document to which it is a party.
Section 4.2 — Authorization
The execution, delivery, and performance of this Agreement and each other Transaction Document to which the Pledgor is a party have been duly authorized by all necessary corporate action on the part of TSL, including all requisite resolutions of the Board of Directors of TSL. No shareholder approval or other corporate authorization beyond that which has been obtained (or will be obtained prior to the Closing Date) is required for the Pledgor to enter into, deliver, or perform this Agreement. The Pledgor confirms that draft board resolutions authorizing the transactions contemplated by this Agreement have been prepared by Calderwood & Harkness LLP for review and approval by Alexandros Theodorakis, General Counsel of TSL, and that such resolutions are expected to be adopted prior to the Closing Date.
Section 4.3 — Title to Pledged Shares
TSL is the sole legal and beneficial owner of 100% of the issued and paid-up share capital of TFPL, being [●] ordinary shares of par value S$[●] each. All of the Pledged Shares have been validly issued, are fully paid and non-assessable, and are free and clear of all liens, pledges, charges, encumbrances, security interests, equities, claims, options, rights of first refusal, pre-emptive rights, or other restrictions or third-party rights of any kind whatsoever, except for the security interest created by this Agreement. No person other than TSL has any legal or beneficial interest in any of the Pledged Shares.
Section 4.4 — No Conflicts
The execution, delivery, and performance by the Pledgor of this Agreement and the consummation of the transactions contemplated hereby do not and will not:
(a) violate, conflict with, or result in a breach of any provision of the articles of association or other constituent documents of TSL or the constitution or other constituent documents of TFPL;
(b) violate, conflict with, or result in a breach of any applicable law, statute, regulation, order, judgment, or decree of any governmental authority in the Hellenic Republic, the Republic of Singapore, or any other jurisdiction in which the Pledgor conducts material business;
(c) result in a breach of, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, any material agreement, contract, indenture, mortgage, lease, license, or other instrument to which the Pledgor is a party or by which any of its assets are bound; or
(d) result in the creation or imposition of any lien, pledge, charge, encumbrance, or security interest on or over the Pledged Shares, other than the pledge and security interest created by this Agreement.
Section 4.5 — Enforceability
This Agreement constitutes (or, upon due execution and delivery, will constitute) the legal, valid, binding, and enforceable obligations of the Pledgor, enforceable against the Pledgor in accordance with its terms under the laws of the Republic of Singapore, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general application affecting the enforcement of creditors' rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Section 4.6 — Consents and Approvals
All consents, approvals, authorizations, orders, filings, registrations, declarations, and notifications of or with any governmental authority, court, regulatory body, or other person that are required in connection with the execution, delivery, and performance by the Pledgor of this Agreement, and the creation, perfection, and enforcement of the security interest created hereby, have been obtained or made, or will be obtained or made prior to the Closing Date, and all such consents, approvals, authorizations, filings, and registrations are or will be in full force and effect and are not subject to any unfulfilled conditions. Without limiting the foregoing, no consent of TFPL's sole director, Marina Demetriou, under TFPL's constitution is required for the transfer of the Pledged Shares upon enforcement, or, if any such consent is required under TFPL's constitution, such consent has been duly obtained and delivered, or irrevocably waived, prior to the date of this Agreement.
Section 4.7 — No Litigation
No litigation, arbitration, administrative, or other legal proceeding or investigation is pending or, to the Pledgor's knowledge after due inquiry, threatened against the Pledgor, TFPL, or any of their respective assets, properties, or revenues, which could reasonably be expected to (a) materially and adversely affect the Pledgor's ability to perform its obligations under this Agreement; (b) challenge the validity, legality, or enforceability of this Agreement or any material provision hereof; or (c) materially and adversely affect the value of the Pledged Shares or the security interest created by this Agreement.
Section 4.8 — TFPL — Company Information
The Pledgor represents and warrants that:
(a) TFPL is a private company limited by shares duly incorporated and validly existing under the laws of the Republic of Singapore, registered with ACRA under UEN 202209345K;
(b) the registered office of TFPL is at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981;
(c) the sole director of TFPL is Marina Demetriou, who also serves as the Chief Financial Officer of TSL;
(d) TFPL is a wholly-owned subsidiary of TSL, established for the primary purpose of serving as the co-issuer vehicle for the Notes and to facilitate the issuance of Singapore-law governed Notes in the international capital markets;
(e) TFPL holds intercompany loans receivable from the fleet-owning subsidiaries of TSL in the aggregate principal amount of $365,000,000 (the "Intercompany Loan Receivables"), which Intercompany Loan Receivables constitute the principal asset of TFPL;
(f) the authorized share capital of TFPL is [●] ordinary shares of par value S$[●] each, of which [●] ordinary shares have been issued and are fully paid, all of which are held by TSL;
(g) TFPL has no employees, branches, or offices other than its registered office in Singapore;
(h) TFPL has not issued any debentures, bonds, notes, or other debt securities (other than in its capacity as co-issuer of the Notes), and has not incurred any indebtedness other than the Notes (in its capacity as co-issuer) and the Intercompany Loan Receivables; and
(i) TFPL is not a party to any material contract or agreement other than the Transaction Documents and the intercompany loan agreements with the fleet-owning subsidiaries.
Section 4.9 — No Pre-Emption Rights
There are no outstanding pre-emptive rights, options, warrants, conversion rights, exchange rights, subscription rights, rights of first refusal, put or call rights, or other agreements, commitments, arrangements, or understandings of any kind (whether conditional or unconditional) obligating TFPL to issue, sell, transfer, repurchase, redeem, or otherwise dispose of any shares, securities, or equity interests of any class, or any securities or instruments convertible into or exchangeable for any shares or equity interests of TFPL, other than as may be expressly required or permitted under the Indenture or the other Transaction Documents.
Section 4.10 — Accuracy of Information
All information provided by the Pledgor or on behalf of the Pledgor to the Security Agent in connection with this Agreement, the other Security Documents, and the other Transaction Documents, including without limitation any information relating to TFPL, the Pledged Shares, and the assets and liabilities of TFPL, is true, complete, and accurate in all material respects as of the date such information was provided, and no material fact or circumstance has been omitted that would render such information misleading in any material respect.
ARTICLE 5 — COVENANTS OF THE PLEDGOR
The Pledgor covenants and agrees with the Security Agent (for and on behalf of itself and the Secured Parties) as follows, and such covenants shall remain in full force and effect until all Secured Obligations have been irrevocably and unconditionally paid, performed, and discharged in full:
Section 5.1 — Preservation of Pledged Shares
The Pledgor shall not, without the prior written consent of the Security Agent (acting in accordance with the Intercreditor Agreement and the instructions of the Trustee or the requisite holders):
(a) sell, transfer, assign, convey, pledge, hypothecate, encumber, or otherwise dispose of any Pledged Shares or any interest therein;
(b) create or permit to subsist any lien, pledge, charge, encumbrance, security interest, option, right of first refusal, or other restriction or adverse claim of any kind over any Pledged Shares, other than the pledge and security interest created by this Agreement; or
(c) enter into any agreement, arrangement, or understanding (whether conditional or unconditional) to do any of the foregoing.
Section 5.2 — No Amendment to TFPL Constitution
The Pledgor shall not, without the prior written consent of the Security Agent, amend, vary, supplement, revoke, modify, or waive any provision of TFPL's constitution (memorandum and articles of association) or any resolution of TFPL's shareholders or directors, in each case to the extent that such amendment, variation, supplement, revocation, modification, or waiver could reasonably be expected to adversely affect, diminish, or impair the rights, interests, or remedies of the Security Agent or any Secured Party under this Agreement or any other Security Document.
Section 5.3 — No Dilution
The Pledgor shall not permit, authorize, or cause TFPL to issue, allot, or grant any additional shares, securities, convertible securities, equity-linked instruments, options, warrants, or other rights to subscribe for or acquire shares or equity interests in TFPL to any person other than the Pledgor, without the prior written consent of the Security Agent. If any additional shares in TFPL are issued or allotted to the Pledgor (whether by way of bonus issue, rights issue, stock split, capitalization of reserves, or otherwise), such additional shares shall automatically and without further act become part of the Pledged Property and shall be subject to the pledge and security interest created by this Agreement, and the Pledgor shall promptly comply with the perfection requirements set forth in Article 3 with respect to such additional shares.
Section 5.4 — Corporate Existence of TFPL
The Pledgor shall procure that TFPL:
(a) maintains its corporate existence in good standing under the laws of the Republic of Singapore and remains duly registered with ACRA;
(b) maintains its registration at its current registered office address (or at such other address in Singapore as may be notified to the Security Agent in writing in advance);
(c) does not merge with or into, consolidate with, or enter into any scheme of arrangement or reconstruction with any other person, without the prior written consent of the Security Agent;
(d) does not voluntarily wind up, dissolve, or liquidate, and does not apply to be struck off the register maintained by ACRA, without the prior written consent of the Security Agent; and
(e) complies with all requirements for annual filings, tax returns, and other regulatory obligations with ACRA and the Inland Revenue Authority of Singapore.
Section 5.5 — Compliance with Laws
The Pledgor shall comply, and shall procure that TFPL complies, with all applicable laws, statutes, regulations, rules, ordinances, codes, orders, judgments, injunctions, and decrees of any governmental authority in all material respects, including without limitation the Companies Act 1967 of Singapore (as amended), the Securities and Futures Act 2001 of Singapore (as amended), and any applicable anti-money laundering, sanctions, anti-bribery, and anti-corruption laws.
Section 5.6 — Information and Access
The Pledgor shall:
(a) promptly (and in any event within five (5) Business Days) notify the Security Agent in writing of any event, circumstance, or condition that could reasonably be expected to materially and adversely affect: (i) the value of the Pledged Shares; (ii) the enforceability or priority of the security interest created by this Agreement; or (iii) the Pledgor's ability to perform its obligations under this Agreement;
(b) provide to the Security Agent, promptly upon reasonable request, such information regarding TFPL, the Pledged Shares, the assets and liabilities of TFPL, and the Intercompany Loan Receivables as the Security Agent may reasonably request from time to time;
(c) furnish to the Security Agent, promptly upon receipt, copies of: (i) all annual returns and financial statements of TFPL filed with ACRA; (ii) all resolutions of the directors and shareholders of TFPL; and (iii) any notices, orders, or communications received from ACRA, the Inland Revenue Authority of Singapore, or any other governmental authority relating to TFPL; and
(d) permit the Security Agent and its agents, representatives, and advisors (including, without limitation, legal and financial advisors) to inspect TFPL's register of members, register of charges, and other corporate books and records at any time during normal business hours upon reasonable prior written notice to the Pledgor.
Section 5.7 — Dividends and Distributions
(a) Prior to the occurrence of an Enforcement Event: The Pledgor shall be entitled to receive all dividends, distributions, returns of capital, and other payments declared and paid on or in respect of the Pledged Shares, subject in each case to compliance with the Indenture's restricted payments covenant, including the restricted payments basket (being the greater of $30,000,000 and 10% of Consolidated Net Tangible Assets, as defined in the Indenture), and any other applicable restrictions contained in the Indenture and the other Transaction Documents.
(b) Upon and after the occurrence of an Enforcement Event that is continuing: All dividends, distributions, returns of capital, and other payments of any kind declared, made, or payable on or in respect of the Pledged Shares shall be paid directly to, or as directed by, the Security Agent. If any such dividend, distribution, or payment is received by the Pledgor after the occurrence and during the continuance of an Enforcement Event, the Pledgor shall hold such dividend, distribution, or payment in trust for the Security Agent and shall promptly deliver the same to the Security Agent. Any amounts received by the Security Agent pursuant to this Section 5.7(b) shall be held by the Security Agent as additional collateral for the Secured Obligations and shall be applied in accordance with the waterfall provisions of the Intercreditor Agreement.
Section 5.8 — Voting Rights
(a) Prior to the occurrence of an Enforcement Event: The Pledgor shall be entitled to exercise all voting rights attached to the Pledged Shares, provided that the Pledgor shall not exercise any such voting right in a manner that would be inconsistent with, or prejudicial to, the terms or provisions of this Agreement, the Indenture, the Intercreditor Agreement, or any other Transaction Document, or that would reasonably be expected to diminish or impair the value of the Pledged Shares or the enforceability or priority of the security interest created by this Agreement.
(b) Upon and after the occurrence of an Enforcement Event that is continuing: All voting rights in respect of the Pledged Shares shall be exercisable solely by the Security Agent or its nominee, and the Pledgor shall not exercise, and shall be deemed to have irrevocably waived, all voting rights in respect of the Pledged Shares. The Security Agent shall be entitled to attend and vote at all meetings of shareholders of TFPL, to appoint and remove directors of TFPL, and to exercise all other rights and powers attaching to the Pledged Shares as the Security Agent in its sole discretion considers appropriate for the purpose of protecting or enforcing the security interest created by this Agreement.
Section 5.9 — Further Assurance
The Pledgor shall, at its own cost and expense, promptly execute and deliver all such further documents, instruments, agreements, and assurances, and take all such further action, as the Security Agent may from time to time reasonably require to:
(a) create, perfect, protect, preserve, maintain, or enforce the security interest created by this Agreement;
(b) enable the Security Agent to exercise any of its rights or remedies under this Agreement; and
(c) carry out the purposes and intent of this Agreement.
Without limiting the foregoing, the Pledgor shall, upon request by the Security Agent, execute and deliver supplemental pledge agreements, additional share transfer forms, powers of attorney, consents, waivers, and other instruments as the Security Agent may reasonably require.
Section 5.10 — Notification of Adverse Claims
The Pledgor shall immediately (and in any event within two (2) Business Days) notify the Security Agent in writing if the Pledgor becomes aware of any claim, interest, encumbrance, attachment, execution, levy, lien, or adverse claim of any kind asserted or threatened by any third party over or in respect of any of the Pledged Shares or any of the assets of TFPL. The Pledgor shall, at its own cost and expense, take all reasonable steps to defend against, resist, and discharge any such claim, interest, or encumbrance, and shall keep the Security Agent informed of all developments in connection therewith.
Section 5.11 — Taxes and Stamp Duty
The Pledgor shall promptly pay, or procure the payment of, all stamp duties, registration fees, documentary taxes, transfer taxes, and other taxes, duties, levies, charges, and impositions of any kind payable in connection with this Agreement and the transactions contemplated hereby, including without limitation any stamp duty payable under the Stamp Duties Act 1929 of Singapore (as amended) in respect of: (a) the creation of the pledge and security interest contemplated by this Agreement; (b) the execution and delivery of the blank share transfer forms contemplated by Article 3; (c) any enforcement of the pledge; and (d) any release or discharge of the pledge. The Pledgor shall indemnify the Security Agent against any stamp duty, tax, or other charge that the Security Agent may be required to pay in connection with this Agreement.
ARTICLE 6 — ENFORCEMENT
Section 6.1 — Enforcement Event
The Security Agent may enforce the pledge and security interest created by this Agreement at any time after the occurrence and during the continuance of an Enforcement Event (as defined in the Indenture, being an "Event of Default" under Section 6.01 thereof). For the avoidance of doubt, the Security Agent shall act in accordance with the provisions of the Intercreditor Agreement when exercising any enforcement rights under this Agreement, including with respect to the timing, manner, and coordination of any enforcement action and the application of proceeds.
Section 6.2 — Remedies