FORM OF RULE 144A GLOBAL NOTE
Exhibit [●] to the Indenture
THIS IS A BLANK FORM — fields marked with brackets are to be completed at the time of issuance.
PREFATORY LEGENDS AND RESTRICTIVE MARKINGS
CUSIP / ISIN Legend
CUSIP: [Insert CUSIP]
ISIN: [Insert ISIN]
THE CUSIP AND ISIN NUMBERS SET FORTH HEREIN HAVE BEEN INCLUDED SOLELY FOR THE CONVENIENCE OF THE HOLDERS OF THE NOTES. NO REPRESENTATION IS MADE AS TO THE CORRECTNESS OF SUCH NUMBERS EITHER AS PRINTED ON THE NOTES OR AS CONTAINED IN ANY NOTICE OF REDEMPTION OR OTHER COMMUNICATION. THE CO-ISSUERS, THE TRUSTEE, AND THE PAYING AGENT SHALL NOT BE RESPONSIBLE FOR THE SELECTION OR USE OF SUCH NUMBERS, AND NO REPRESENTATION IS MADE AS TO THEIR CORRECTNESS ON THE NOTES OR IN ANY NOTICE OR COMMUNICATION SENT TO THE HOLDERS THEREOF.
Transfer Restriction Legend (Rule 144A)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR FOR WHICH IT HAS PURCHASED NOTES TO OFFER, SELL, OR OTHERWISE TRANSFER SUCH NOTE ONLY:
(a) to a person whom the seller reasonably believes is a qualified institutional buyer ("QIB") within the meaning of Rule 144A under the Securities Act, purchasing for its own account or for the account of a QIB, in a transaction meeting the requirements of Rule 144A;
(b) in an offshore transaction in compliance with Rule 903 or Rule 904 of Regulation S under the Securities Act;
(c) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), subject to the Co-Issuers' and the Trustee's right to require the delivery of an opinion of counsel, certifications, and/or other information satisfactory to each of them;
(d) pursuant to an effective registration statement under the Securities Act; or
(e) to the Co-Issuers or any subsidiary thereof.
EACH SUCH TRANSFER MUST BE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.
PRIOR TO ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN, THE HOLDER MUST DELIVER TO THE TRUSTEE SUCH CERTIFICATIONS, LEGAL OPINIONS, OR OTHER INFORMATION AS MAY BE REQUIRED UNDER THE INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE NOTES ARE ISSUABLE ONLY IN REGISTERED FORM IN MINIMUM DENOMINATIONS OF U.S.$[Insert minimum denomination] (GUIDANCE: U.S.$200,000) AND INTEGRAL MULTIPLES OF U.S.$1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF A NOTE IN AN AMOUNT LESS THAN SUCH MINIMUM DENOMINATION SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER, AND ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NEVER TO HAVE BEEN A HOLDER OF SUCH NOTE. ANY ATTEMPTED TRANSFER OF A NOTE THAT WOULD RESULT IN A REMAINING HOLDING OF LESS THAN U.S.$200,000 SHALL LIKEWISE BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT.
DTC Legend. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK 10041) TO THE CO-ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE. TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE APPLICABLE RULES AND PROCEDURES OF DTC AND THE RESTRICTIONS ON TRANSFER SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
FACE OF THE NOTE
THALASSA SHIPPING & LOGISTICS SA
THALASSA FINANCE PTE. LTD.
(as Co-Issuers)
[●]% SENIOR SECURED NOTES DUE [●]
Guidance: Insert coupon rate (e.g., 8.750%) and maturity year (e.g., 2029) at the time of issuance.
No. 144A-[●]
CUSIP No.: [Insert CUSIP] ISIN: [Insert ISIN] Common Code: [●]
Guidance: Proposed CUSIP, ISIN, and Common Code to be confirmed by the Initial Purchasers prior to the closing date.
Principal Amount: [Insert Aggregate Principal Amount]
U.S.$[●]
Guidance: Up to the full aggregate principal amount of Notes offered under Rule 144A in connection with the initial offering.
Issuance Statement. THALASSA SHIPPING & LOGISTICS SA, a société anonyme organized and existing under the laws of the Hellenic Republic ("TSL"), and THALASSA FINANCE PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore ("TFPL" and, together with TSL, the "Co-Issuers"), for value received, jointly and severally promise to pay to [Insert — "Cede & Co." or such other nominee of DTC], or registered assigns (the "Holder"), the principal sum of [●] United States Dollars (U.S.$[●]) [or such greater or lesser amount as may be indicated on the Schedule of Increases or Decreases in Global Note attached hereto as Annex A] on [Insert Maturity Date] (the "Maturity Date").
Guidance: Maturity date placeholder (e.g., October 15, 2029).
Interest. The Co-Issuers promise to pay interest on the unpaid principal amount of this Note at the rate of [●]% per annum (the "Interest Rate").
Interest on this Note shall accrue from [Insert Issue Date] (the "Issue Date") or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, whichever is later.
Interest shall be payable semi-annually in arrears on [Insert First Interest Payment Date] and [Insert Second Interest Payment Date] of each year (each, an "Interest Payment Date"), commencing on [●]. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months. The first interest payment will include interest accrued from the Issue Date through, but not including, the first Interest Payment Date.
Guidance: First Interest Payment Date and Second Interest Payment Date (e.g., April 15 and October 15 of each year). Coupon rate (e.g., 8.750%). First interest payment date expected to be April 15, 2025.
The record date (the "Record Date") for each Interest Payment Date shall be [●] (i.e., the [●] immediately preceding the applicable Interest Payment Date).
Guidance: Record Date (e.g., the April 1 or October 1 immediately preceding the applicable Interest Payment Date, or such other date as is 15 calendar days prior to such Interest Payment Date).
Method of Payment
The Co-Issuers shall pay interest on, principal of, and premium (if any) on this Global Note to the registered Holder hereof by wire transfer of immediately available funds in United States Dollars to an account in the continental United States specified by the Holder in writing to the Paying Agent not fewer than five (5) Business Days prior to such payment date, or in such other manner as may be agreed between the Co-Issuers and the Holder. So long as this Note is registered in the name of a nominee of DTC, such payments shall be made to DTC or its nominee in accordance with DTC's customary procedures, and the Co-Issuers and the Paying Agent shall treat DTC or its nominee as the sole and exclusive Holder of this Note for purposes of receiving such payments.
If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day (as defined in the Indenture), such payment shall be made on the next succeeding Business Day with the same force and effect as if made on such scheduled payment date, and no additional interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or Maturity Date, as the case may be, to the date of actual payment.
Paying Agent and Registrar
Initially, Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (the "Trustee") shall act as Paying Agent, Registrar, and Transfer Agent with respect to the Notes. The Co-Issuers may change any Paying Agent, Registrar, or Transfer Agent at any time without prior notice to any Holder, subject to the terms and conditions of the Indenture and the Paying Agent and Transfer Agent Agreement. The Co-Issuers shall at all times maintain a Paying Agent and a Registrar in accordance with the Indenture.
REFERENCE TO INDENTURE; DEFINITIONS
This Note is one of a duly authorized issue of notes of the Co-Issuers designated as their "[●]% Senior Secured Notes due [●]" (the "Notes"), limited in initial aggregate principal amount to U.S.$[Insert — e.g., $400,000,000] (subject to increase from time to time in connection with Additional Notes issued in compliance with the Indenture). The Notes are issued under and governed by an Indenture dated as of [Insert Issue Date] (as amended, supplemented, restated, or otherwise modified from time to time, the "Indenture"), among the Co-Issuers, the Guarantors named therein, Marlowe Asset Management Trust Company of Singapore Pte. Ltd. as Trustee (in such capacity, the "Trustee"), and Atlas Collateral Agency Pte. Ltd. as Security Agent (in such capacity, the "Security Agent").
The terms of the Notes include those stated in the Indenture and those made part thereof by reference to the Trust Indenture Act of 1939 (to the extent applicable) and to the terms and conditions set forth in the Indenture. Capitalized terms used herein without definition shall have the respective meanings assigned to them in the Indenture. In the event that any term or provision of this Note is inconsistent with or contrary to any term or provision of the Indenture, the terms and provisions of the Indenture shall control and govern.
The Holder of this Note is entitled to the benefits of, is bound by, and is deemed to have notice of all of the provisions of the Indenture and the Security Documents applicable to such Holder. Copies of the Indenture and the Security Documents are on file at the corporate trust office of the Trustee. The Holder of this Note, by its acceptance hereof, agrees to be bound by all of the terms and provisions of the Indenture, as in effect from time to time.
GUARANTEES
The Guarantors listed in the Indenture (the "Guarantors") have jointly and severally, unconditionally and irrevocably guaranteed (each, a "Guarantee") the due and punctual payment of the principal of, premium (if any), and interest on, and all other amounts payable under, the Notes and the Indenture when and as the same shall become due and payable, whether at maturity, upon acceleration, upon redemption, upon a Change of Control Offer, upon an Asset Sale Offer, or otherwise, and the due and punctual performance of all other obligations of the Co-Issuers under the Notes and the Indenture, all as more fully set forth in Article [●] of the Indenture.
The Guarantor Subsidiaries include fleet-owning and operating subsidiaries organized under the laws of the Republic of Malta, the Republic of the marshall Islands, the Emirate of Dubai (DIFC), and the Republic of Singapore, each as identified and named in the Indenture and the supplemental instruments thereto.
Additionally, [Insert Parent Guarantor Name] has provided a limited parent guarantee (the "Parent Guarantee") in respect of the obligations of the Co-Issuers under the Notes and the Indenture, which Parent Guarantee is capped at an aggregate amount not to exceed U.S.$[Insert Amount — e.g., $50,000,000], as more fully described and subject to the terms, conditions, and limitations set forth in the Indenture. The Parent Guarantee does not constitute a full and unconditional guarantee of the Notes.
The obligations of each Guarantor under its Guarantee are limited as necessary to comply with applicable fraudulent conveyance, fraudulent transfer, corporate benefit, thin capitalization, and other similar laws in each relevant jurisdiction, as more fully set forth in the Indenture.
SECURITY
The Notes and the Guarantees are secured by first-priority security interests (subject to Permitted Liens) in the Collateral, as more fully described in the Indenture, the Security Documents, and the Intercreditor Agreement dated as of [Insert Issue Date] among the Co-Issuers, the Guarantors, the Trustee, the Security Agent, and the other parties thereto. The Collateral includes, without limitation, the following:
(a) Vessel Mortgages. First-priority ship mortgages (or, in the case of vessels registered under the laws of the Republic of the marshall Islands, first preferred ship mortgages) over [Insert number] vessels (collectively, the "Collateral Vessels"), with an appraised aggregate fair market value as of the Issue Date of approximately U.S.$[Insert Amount], as determined by independent appraisals commissioned for the purposes of the offering;
(b) Assignment of Earnings, Insurances, and Requisition Compensation. First-priority assignments of all earnings, charter hire, freight, demurrage, defense and indemnity recoveries, insurance proceeds, and requisition compensation for and in respect of each of the Collateral Vessels;
(c) Equity Pledges. First-priority pledge over 100% of the issued and outstanding equity interests of [Insert Co-Issuer SPV Name] and each fleet-owning Guarantor Subsidiary, including all rights to dividends, distributions, and other payments in respect thereof;
(d) Intercompany Receivables. First-priority assignment of intercompany loan receivables owing by the Guarantor Subsidiaries to the Co-Issuers in the aggregate amount of U.S.$[Insert Amount], together with all proceeds thereof.
Guidance: 28 Collateral Vessels; appraised value placeholder to be confirmed prior to closing; equity pledges and intercompany receivables pledges as specified in the Indenture and the Security Documents.
The Holder of this Note is referred to the Security Documents and the Intercreditor Agreement for the detailed terms, conditions, and procedures governing the creation, perfection, maintenance, and enforcement of the security interests in the Collateral. In the event of any conflict between this summary description and the terms of the Security Documents or the Intercreditor Agreement, the terms of the Security Documents and the Intercreditor Agreement, respectively, shall govern.
The security interests in the Collateral are held by the Security Agent on behalf of, and for the ratable benefit of, the Holders of the Notes and certain other Secured Parties, as more fully described in the Intercreditor Agreement.
OPTIONAL REDEMPTION
Make-Whole Redemption. Prior to [Insert Date — i.e., the date that is three (3) years after the Issue Date] (the "Par Call Date"), the Co-Issuers may, at their option, redeem the Notes, in whole or in part, at any time or from time to time, at a redemption price (the "Make-Whole Redemption Price") equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed; and
(2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to, but excluding, the Redemption Date) that would be due if such Notes matured on the Par Call Date, discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the Treasury Rate plus [Insert — e.g., 50] basis points (the "Applicable Premium"),
plus, in each case, accrued and unpaid interest, if any, thereon to, but excluding, the Redemption Date.
For purposes of the foregoing, the "Applicable Premium" means the greater of (i) 1.0% of the principal amount of such Note and (ii) the excess, if any, of (a) the present value at such Redemption Date of the redemption price of the Notes on the Par Call Date (as set forth in the call schedule below) plus all required remaining scheduled interest payments due on the Note through the Par Call Date (exclusive of interest accrued to, but excluding, the Redemption Date), computed using a discount rate equal to the Treasury Rate plus [Insert — e.g., 50] basis points, over (b) the outstanding principal amount of such Note on such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities") most nearly equal to the period from the Redemption Date to the Par Call Date; provided that if the period from the Redemption Date to the Par Call Date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to the Par Call Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
Guidance: Make-whole at T+50 bps for first 3 years from the Issue Date.
Fixed-Price Redemption (Call Schedule)
On or after [Insert Date — three (3) years after the Issue Date], the Co-Issuers may, at their option, redeem the Notes, in whole or in part, at any time or from time to time, at the following redemption prices (expressed as percentages of the principal amount of the Notes to be redeemed), plus accrued and unpaid interest, if any, thereon to, but excluding, the Redemption Date, if redeemed during the twelve-month period beginning on the dates set forth below:
Guidance: Insert applicable dates and redemption prices consistent with the Indenture terms. The redemption prices above are illustrative only and are to be confirmed in the final Indenture.
Equity Clawback. At any time (or from time to time) prior to [Insert Date — e.g., the date that is three (3) years after the Issue Date], the Co-Issuers may, at their option, redeem up to [●]% (guidance: 40%) of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) at a redemption price equal to [●]% (guidance: 108.750%) of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, thereon to, but excluding, the Redemption Date, with the net cash proceeds received by the Co-Issuers or any direct or indirect parent company of the Co-Issuers from one or more Equity Offerings (as defined in the Indenture); provided that:
(i) at least [●]% (guidance: 60%) of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) remains outstanding immediately after giving effect to each such redemption; and
(ii) each such redemption occurs within [●] days (guidance: 180 days) of the closing date of the related Equity Offering.
Partial Redemption Procedures
In the event of a partial redemption of the Notes pursuant to any provision of the Indenture, selection of Notes for redemption shall be made by the Trustee in compliance with the requirements of DTC and its applicable procedures, by lot, pro rata, or by such other method as the Trustee shall deem fair and appropriate in its sole discretion, in accordance with the Indenture. No Note having a remaining principal amount of U.S.$[Insert — $200,000] or less shall be redeemed in part. Any Note that is redeemed in part shall be redeemed only in a principal amount equal to U.S.$1,000 or an integral multiple thereof.
Notice of redemption (a "Redemption Notice") shall be mailed or otherwise delivered electronically (including through DTC's procedures) by the Co-Issuers or by the Trustee at the Co-Issuers' request not fewer than [●] days nor more than [●] days prior to the Redemption Date (guidance: 15 to 60 days) to each Holder of Notes to be redeemed at the address of such Holder appearing in the security register maintained by the Registrar. Each Redemption Notice shall comply with the requirements set forth in the Indenture.
On and after any Redemption Date, interest shall cease to accrue on the Notes or portions thereof called for redemption, unless the Co-Issuers default in making the redemption payment on such Redemption Date.
CHANGE OF CONTROL
Upon the occurrence of a Change of Control Triggering Event (as defined in the Indenture), each Holder of the Notes shall have the right to require the Co-Issuers to repurchase all or any part of such Holder's Notes (in minimum denominations of U.S.$[Insert — $200,000] and integral multiples of U.S.$[Insert — $1,000] in excess thereof) at a purchase price in cash equal to [●]% (guidance: 101%) of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase (the "Change of Control Payment Date").
The procedures, timing, and conditions for such repurchase, including the notice requirements, the Change of Control Offer mechanics, and the settlement procedures, are set forth in detail in Article [●] of the Indenture, and the Holder of this Note is referred to the Indenture for a complete description thereof.
ASSET SALE OFFERS
Under the Indenture, the Co-Issuers are required to apply 100% of the Net Proceeds (as defined in the Indenture) of any Asset Sale (as defined in the Indenture) involving aggregate consideration in excess of U.S.$[Insert — $15,000,000] per transaction (or series of related transactions) to make an offer to all Holders to repurchase Notes at a purchase price in cash equal to [●]% (guidance: 100%) of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date, unless such Net Proceeds are reinvested in Replacement Assets (as defined in the Indenture) or otherwise applied within [●] days (guidance: 365 days) of the receipt thereof in accordance with the terms of the Indenture. The detailed terms and conditions of Asset Sale Offers are set forth in Article [●] of the Indenture.
DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are issuable only in registered form without coupons in minimum denominations of U.S.$[Insert — $200,000] and integral multiples of U.S.$[Insert — $1,000] in excess thereof. No Note may be issued, transferred, or exchanged in a denomination that is less than U.S.$200,000, and no Note may be issued, transferred, or exchanged if such issuance, transfer, or exchange would result in the transferor retaining a beneficial interest in the Notes in an aggregate principal amount of less than U.S.$200,000 (unless such amount equals zero).
A Holder may transfer or exchange Notes in accordance with the Indenture by presenting and surrendering such Notes at the office of the Registrar, together with such endorsements and transfer documents as the Registrar and the Trustee may require. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, legal opinions, certifications, and representations as set forth in the Indenture, and to pay any transfer taxes, fees, or charges required by law or permitted by the Indenture.
No service charge shall be made for any registration of transfer or exchange of the Notes, but the Co-Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith. The Co-Issuers are not required to transfer or exchange any Note selected for redemption or any Note for a period of fifteen (15) days before a Redemption Notice is sent.
PERSONS DEEMED OWNERS
The registered Holder of a Note shall be treated as the owner of such Note for all purposes, including the receipt of payments of principal, premium (if any), and interest. Neither the Co-Issuers, the Trustee, the Security Agent, the Paying Agent, the Registrar, nor any agent of any of the foregoing shall be affected by notice to the contrary, and all such payments made to or upon the order of the registered Holder shall be valid and effective to satisfy and discharge the Co-Issuers' obligations in respect of such payments to the extent of the sum or sums so paid.
EVENTS OF DEFAULT AND REMEDIES
If an Event of Default (as defined in the Indenture) occurs and is continuing, the Trustee or the Holders of at least [●]% (guidance: 25%) in aggregate principal amount of the then-outstanding Notes may, by written notice to the Co-Issuers (and to the Trustee, if given by the Holders), declare the principal of, premium (if any), and accrued and unpaid interest on all the Notes to be immediately due and payable. Upon such a declaration, such principal, premium, and interest shall be immediately due and payable.
Holders of a majority in aggregate principal amount of the then-outstanding Notes may, by written notice to the Co-Issuers and the Trustee, rescind any such acceleration and its consequences if all existing Events of Default, other than the non-payment of the principal of, premium (if any), and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived as provided in the Indenture.
In the case of an Event of Default arising from certain events of bankruptcy, insolvency, or reorganization with respect to either Co-Issuer or any Significant Subsidiary, all outstanding Notes shall become due and payable immediately without further action or notice.
The Holder of this Note is referred to Article [●] of the Indenture for a complete description of all Events of Default and the remedies available to the Trustee and the Holders upon the occurrence and continuation of an Event of Default.
AMENDMENTS, SUPPLEMENTS, AND WAIVERS
Subject to certain exceptions set forth in the Indenture, the Indenture and the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and any existing default or compliance with any provision of the Indenture or the Notes may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of the then-outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), except with respect to those matters requiring the consent of each affected Holder as set forth in the Indenture (including, without limitation, any amendment or waiver that would reduce the principal amount of, or change the Maturity Date of, any Note, reduce the rate of or change the time for payment of interest on any Note, reduce any premium payable upon redemption of any Note, change the coin or currency in which the Notes or any premium or interest thereon is payable, or modify the provisions relating to the waiver of Events of Default).
Without the consent of any Holder, the Co-Issuers and the Trustee may amend or supplement the Indenture or the Notes for certain limited purposes specified in the Indenture, including, without limitation, to cure any ambiguity, defect, or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to add Guarantors with respect to the Notes, to add additional Collateral, to evidence the succession of another person to either Co-Issuer and the assumption by any such successor of the obligations of such Co-Issuer under the Indenture and the Notes, to secure the Notes, to conform the text of the Indenture, the Notes, or the Guarantees to any provision of the description of the Notes in the Offering Memorandum relating to the initial offering of the Notes (to the extent that such provision was intended to be a verbatim or substantially verbatim recitation of a provision of the Indenture, the Notes, or the Guarantees), or to make any amendment to the provisions of the Indenture relating to the transfer and legending of Notes as may be permitted by the Securities Act.
The Holder of this Note is referred to Article [●] of the Indenture for a complete description of the amendment, supplement, and waiver provisions.
DEFAULTS AND REMEDIES — TRUSTEE PROTECTIONS
The Trustee shall not be obligated to exercise any of its rights or powers under the Indenture at the request or direction of any Holder or group of Holders unless such Holder or group of Holders has offered to the Trustee indemnity and/or security satisfactory to it in its sole discretion against any loss, liability, cost, or expense that the Trustee may incur in complying with such request or direction. The Trustee shall be entitled to rely upon, and shall be fully protected in acting or refraining from acting upon, any document believed by it to be genuine and to have been signed or presented by the proper person or persons, and the Trustee need not investigate any fact or matter stated in any such document.
The Holder of this Note is referred to the Indenture for a full description of the Trustee's protections, limitations on the Trustee's liability, and the duties and responsibilities of the Trustee, including the circumstances under which the Trustee may resign or be removed.
RANKING
The Notes constitute senior secured obligations of each of the Co-Issuers. The Notes rank:
(a) senior in right of payment to all existing and future Subordinated Indebtedness (as defined in the Indenture) of the Co-Issuers;
(b) pari passu in right of payment with all existing and future senior Indebtedness (as defined in the Indenture) of the Co-Issuers, subject to the relative priorities of different classes of Collateral and payment priorities as set forth in the Intercreditor Agreement;
(c) effectively senior to all existing and future unsecured Indebtedness of the Co-Issuers, to the extent of the value of the Collateral securing the Notes (after giving effect to the claims of other Secured Parties with prior or pari passu liens on such Collateral); and
(d) effectively subordinated to any Indebtedness and other liabilities (including trade payables and other preferred obligations arising by operation of law) of any subsidiary of the Co-Issuers that is not a Guarantor, to the extent of the assets of such subsidiary.
Each Guarantee constitutes a senior secured obligation of the applicable Guarantor and ranks with comparable priority among the obligations of such Guarantor, as more fully described in the Indenture.
COLLATERAL COVERAGE MAINTENANCE
Pursuant to the Indenture, the Co-Issuers are required to maintain a minimum Collateral Coverage Ratio of not less than [●]x (guidance: 2.00x), tested semi-annually as of each Testing Date (as defined in the Indenture). The "Collateral Coverage Ratio" is defined as the ratio of (a) the aggregate appraised fair market value of the Collateral Vessels (as determined by independent appraisals conducted in accordance with the Indenture) to (b) the aggregate outstanding principal amount of the Notes (including any Additional Notes) as of such Testing Date.
If the Collateral Coverage Ratio falls below the required minimum as of any Testing Date, the Co-Issuers shall be required, within the cure period specified in the Indenture, to take one or more of the following remedial actions, as more fully described in the Indenture:
(i) grant additional first-priority ship mortgages over Additional Vessels (as defined in the Indenture) sufficient to restore the Collateral Coverage Ratio to at least the required minimum;
(ii) prepay Notes in an aggregate principal amount sufficient to restore the Collateral Coverage Ratio to at least the required minimum, at a prepayment price equal to 100% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the prepayment date; or
(iii) provide cash collateral or other security acceptable to the Security Agent in an amount sufficient to restore the Collateral Coverage Ratio to at least the required minimum.
Failure to restore the Collateral Coverage Ratio within the applicable cure period shall constitute an Event of Default under the Indenture.
SUCCESSOR CO-ISSUERS
Pursuant to Article [●] of the Indenture, neither Co-Issuer shall consolidate with or merge into, or sell, convey, transfer, lease, or otherwise dispose of all or substantially all of its properties and assets to, any person, unless the conditions specified in the Indenture are satisfied, including, without limitation, that (a) the resulting, surviving, or transferee entity (if not such Co-Issuer) shall be a person organized and existing under the laws of a Permitted Jurisdiction (as defined in the Indenture) and shall expressly assume all of the obligations of such Co-Issuer under the Notes, the Indenture, and the Security Documents by executing and delivering to the Trustee a supplemental indenture in form satisfactory to the Trustee, (b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing, and (c) the other conditions set forth in the Indenture are met.
NO RECOURSE AGAINST OTHERS
A director, officer, employee, incorporator, member, partner, or stockholder of either Co-Issuer or any Guarantor, as such, shall not have any liability for any obligations of the Co-Issuers or the Guarantors under the Notes, the Indenture, the Guarantees, or the Security Documents, or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder, by accepting a Note, waives and releases all such liability. The waiver and release are part of the consideration for the issuance of, and are a condition to the Holder's acceptance of, the Notes.
This provision shall not limit the liability of any individual who signs this Note as an authorized signatory on behalf of either Co-Issuer in such person's capacity as such, to the extent such liability may arise under applicable law.
GOVERNING LAW
This Note, and any claim, controversy, or dispute arising under or related to this Note or the transactions contemplated hereby, whether in contract, tort, or otherwise, shall be governed by and construed in accordance with the laws of the Republic of Singapore, without giving effect to any choice or conflict of law provision or rule (whether of the Republic of Singapore or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Republic of Singapore.
JURISDICTION; WAIVER OF JURY TRIAL
Each of the Co-Issuers hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the Republic of Singapore for the purposes of any suit, action, or proceeding arising out of or relating to this Note, the Indenture, or the transactions contemplated hereby or thereby (each, a "Related Proceeding").
Each of the Co-Issuers hereby irrevocably appoints [Insert name and address of appointed process agent] as its agent to receive on behalf of it and its property service of copies of the summons and complaint and any other process which may be served in any Related Proceeding. Such service may be made by mailing or delivering a copy of such process to the applicable Co-Issuer in care of such process agent at the process agent's address specified above, and each Co-Issuer hereby irrevocably authorizes and directs such process agent to accept such service on its behalf.
Each of the Co-Issuers hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any Related Proceeding in any court referred to above and the defense of an inconvenient forum to the maintenance of any Related Proceeding in any such court.
EACH OF THE CO-ISSUERS AND, BY ITS ACCEPTANCE OF THIS NOTE, EACH HOLDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS NOTE, THE INDENTURE, THE SECURITY DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
AUTHENTICATION
This Note shall not be valid or obligatory for any purpose until the certificate of authentication hereon has been manually or electronically executed by or on behalf of the Trustee under the Indenture. The Trustee's certificate of authentication shall be conclusive evidence that this Note has been duly authenticated and delivered under the Indenture.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
Marlowe Asset Management TRUST COMPANY OF SINGAPORE PTE. LTD., as Trustee
By: ________
Authorized Signatory
Date: [●]
SIGNATURE BLOCKS
IN WITNESS WHEREOF, the Co-Issuers have caused this Note to be duly executed as of the date set forth below.
THALASSA SHIPPING & LOGISTICS SA
By: ________
Name: [●]
Title: [●]
By: ________
Name: [●]
Title: [●]
Guidance: Authorized signatories to be designated by resolution of the board of directors of TSL (e.g., Chief Executive Officer and Chief Financial Officer).
THALASSA FINANCE PTE. LTD.
By: ________
Name: [●]
Title: [●]
Guidance: Authorized signatory to be designated by resolution of the board of directors of TFPL (e.g., sole director).
ANNEX A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in the principal amount of this Global Note have been made:
Guidance: To be completed by the Trustee from time to time to reflect exchanges between the Rule 144A Global Note and the Regulation S Global Note, any issuances of Additional Notes, and any partial redemptions, repurchases, or cancellations of Notes. Each entry must be signed by an authorized signatory of the Trustee.
ANNEX B
FORM OF ASSIGNMENT AND TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s), and transfer(s) unto:
[PLEASE INSERT SOCIAL SECURITY NUMBER OR TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE]:
________________________________________
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]:
________________________________________
________________________________________
________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ________ as attorney to transfer such Note on the books of the Co-Issuers, with full power of substitution in the premises.
In connection with any transfer of the within Note occurring prior to the Resale Restriction Termination Date (as defined in the Indenture), the undersigned confirms that such Note is being transferred:
[CHECK ONE]
(a) to the Co-Issuers or any subsidiary thereof; or
(b) pursuant to an effective registration statement under the Securities Act of 1933, as amended; or
(c) to a person whom the transferor reasonably believes is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act of 1933, as amended, purchasing for its own account or for the account of a qualified institutional buyer, in a transaction meeting the requirements of Rule 144A, and to whom notice has been given that the transfer is being made in reliance on Rule 144A; or
(d) in an offshore transaction in compliance with Rule 903 or Rule 904 of Regulation S under the Securities Act of 1933, as amended; or
(e) pursuant to an exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144 thereunder (if available), subject to the Co-Issuers' and the Trustee's right prior to any such offer, sale, or transfer to require the delivery of an opinion of counsel, certifications, and/or other information satisfactory to each of them.
Date: [●]
Signature: ________
(Signature of Registered Holder)
NOTICE: The signature to this assignment and transfer must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatsoever.
SIGNATURE GUARANTEE: The signature(s) on this assignment and transfer must be guaranteed by a participant in a recognized Signature Guarantee Medallion Program (such as the Securities Transfer Agents Medallion Program (STAMP), the Stock Exchanges Medallion Program (SEMP), or the New York Stock Exchange Medallion Signature Program (MSP)) or other signature guarantee program acceptable to the Trustee.
Signature Guarantee: ________ (Name of Guarantor Institution)
By: ________
Name: [●]
Title: [●]
Date: [●]
ANNEX C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS TO QUALIFIED INSTITUTIONAL BUYERS PURSUANT TO RULE 144A
Marlowe Asset Management Trust Company of Singapore Pte. Ltd. [Insert Address of Trustee]
Thalassa Shipping & Logistics SA [Insert Address]
Thalassa Finance Pte. Ltd. [Insert Address]
Re: [●]% Senior Secured Notes due [●] (the "Notes")
Ladies and Gentlemen:
In connection with the transfer of U.S.$[●] in aggregate principal amount of the above-referenced Notes, the undersigned hereby certifies as follows:
1. The Notes are being transferred to a person (the "Transferee") that the undersigned transferor reasonably believes is a "qualified institutional buyer" within the meaning of Rule 144A under the U.S. Securities Act of 1933, as amended (the "Securities Act"), purchasing for its own account or for the account of a qualified institutional buyer, in a transaction meeting the requirements of Rule 144A.
2. The undersigned transferor has informed the Transferee that the transfer of such Notes is being made in reliance on Rule 144A.
3. The undersigned transferor is not an "affiliate" (as defined in Rule 144 under the Securities Act) of either Co-Issuer (or, if the undersigned transferor is such an affiliate, such transferor will comply with the registration and other requirements of the Securities Act to the extent applicable).
4. This certificate and the statements contained herein are made for the benefit of the Co-Issuers and the Trustee. Terms used in this certificate that are defined in the Indenture are used herein as defined therein.
Date: [●]
[Name of Transferor]
By: ________