NEAR-FINAL — 5TH DRAFT — SUBJECT TO FINAL REVIEW AND EXECUTION Calderwood & Harkness LLP — Matter No. 1044-00004 — Client No. 80214-TSL Draft Date: September 6, 2022
INDENTURE
dated as of [●], 2022
among
THALASSA SHIPPING & LOGISTICS SA (a société anonyme organized under the laws of the Hellenic Republic) as the Company
THALASSA FINANCE PTE. LTD. (a private company limited by shares incorporated in Singapore) as the Co-Issuer
(together, the "Issuers")
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
Marlowe Asset Management TRUST COMPANY OF SINGAPORE PTE. LTD. as Trustee
and
ATLAS COLLATERAL AGENCY PTE. LTD. as Security Agent
$400,000,000
8.750% Senior Secured Notes due 2029
INDENTURE
This INDENTURE is entered into as of [●], 2022 (this "Indenture"),
AMONG:
(1) THALASSA SHIPPING & LOGISTICS SA, a société anonyme organized and existing under the laws of the Hellenic Republic, registered with the General Electronic Commercial Registry (GEMI) under registration number 148276201000, with its registered office at 42 Akti Miaouli, Piraeus 185 35, Greece (the "Company");
(2) THALASSA FINANCE PTE. LTD., a private company limited by shares incorporated in the Republic of Singapore under the Companies Act 1967 (as revised), with Unique Entity Number (UEN) 202209345K, and having its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981 (the "Co-Issuer" and, together with the Company, the "Issuers");
(3) THE GUARANTORS named on the signature pages hereto (each, a "Guarantor" and collectively, the "Guarantors"), being as of the date hereof:
(a) Thalassa Dry Bulk Operations Ltd., a company organized under the laws of Malta;
(b) Thalassa Container Feeder Ltd., a corporation organized under the laws of the Republic of the marshall Islands;
(c) Thalassa Port Services FZCO, a free zone company established in Dubai, United Arab Emirates; and
(d) Thalassa Freight Solutions Pte. Ltd., a private company limited by shares incorporated in the Republic of Singapore;
(4) Marlowe Asset Management TRUST COMPANY OF SINGAPORE PTE. LTD., a private company limited by shares incorporated in the Republic of Singapore, with Unique Entity Number (UEN) 199804782D, and having its registered office at 80 Robinson Road, #02-00, Singapore 068898, as trustee for the Holders of the Notes (in such capacity, the "Trustee"); and
(5) ATLAS COLLATERAL AGENCY PTE. LTD., a private company limited by shares incorporated in the Republic of Singapore, with Unique Entity Number (UEN) 200115678R, and having its registered office at 80 Robinson Road, #02-00, Singapore 068898, as security agent for the benefit of the Trustee and the Holders (in such capacity, the "Security Agent").
RECITALS
WHEREAS, the Issuers have duly authorized the creation and issuance of Four Hundred Million United States Dollars (US$400,000,000) in aggregate principal amount of 8.750% Senior Secured Notes due 2029 (as defined herein, the "Notes"), to be issued in accordance with the terms and conditions set forth in this Indenture;
WHEREAS, the Guarantors have agreed, for the benefit of the Holders of the Notes, to unconditionally and irrevocably guarantee, on a joint and several basis, all of the Issuers' obligations under this Indenture and the Notes, subject to the limitations set forth herein;
WHEREAS, Kallistratos Maritime Holdings Ltd. has agreed to provide a limited parent guarantee in respect of the Issuers' obligations under this Indenture and the Notes, capped at Fifty Million United States Dollars (US$50,000,000) in aggregate, as more particularly described in Section 10.03 hereof;
WHEREAS, to secure the obligations of the Issuers and the Guarantors under this Indenture, the Notes, and the Guarantees, the Issuers and the Guarantors will grant first-priority Liens on the Collateral to the Security Agent, for the benefit of the Trustee and the Holders, pursuant to the Security Documents;
WHEREAS, the parties hereto desire to enter into this Indenture to provide for the issuance of the Notes and to set forth the terms and conditions thereof, the terms and conditions of the Guarantees, and the rights, duties, and obligations of the parties hereto;
WHEREAS, the Issuers and the Guarantors have performed or caused to be performed all things necessary to make the Notes, when executed by the Issuers and authenticated and delivered by the Trustee hereunder, the valid, binding, and enforceable obligations of the Issuers, and to make this Indenture a valid agreement of the Issuers, the Guarantors, the Trustee, and the Security Agent, in accordance with its terms; and
WHEREAS, all things necessary to make the Notes, when authenticated and delivered by the Trustee and duly issued by the Issuers, the valid obligations of the Issuers, and to make this Indenture a valid agreement of the Issuers, the Guarantors, the Trustee, and the Security Agent, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 — Definitions.
As used in this Indenture, the following terms shall have the meanings specified below. Unless the context otherwise requires, terms defined in the singular shall include the plural and vice versa, and all references to currency amounts shall refer to United States Dollars.
"Acquired Indebtedness" means, with respect to any Person, Indebtedness of such Person (i) existing at the time such Person becomes a Restricted Subsidiary of the Company, or (ii) assumed in connection with an Asset Acquisition from such Person, in each case, other than Indebtedness incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or such Asset Acquisition. Acquired Indebtedness shall be deemed to be incurred on the date of the related acquisition of such Person or Asset Acquisition, as applicable.
"Additional Notes" means any Notes issued under this Indenture after the Closing Date in accordance with Section 2.03, which shall be treated as a single class with the Notes originally issued on the Closing Date for all purposes under this Indenture.
"Adjusted EBITDA" means, for any period, the Consolidated Net Income for such period, plus the following to the extent deducted in computing such Consolidated Net Income: (a) consolidated interest expense; (b) income tax expense; (c) depreciation expense; (d) amortization expense; (e) any non-cash charges reducing Consolidated Net Income (excluding any non-cash charge to the extent that it represents an accrual of or reserve for cash expenditures in any future period); minus (f) non-cash items increasing Consolidated Net Income for such period (excluding any items which represent the reversal of any accrual of, or reserve for, anticipated cash charges made in any prior period). For the avoidance of doubt, the LTM Adjusted EBITDA of the Company and its Restricted Subsidiaries as of the first quarter of 2022, on an annualized basis, was US$214,600,000, as set forth in the Offering Memorandum.
"Affiliate" means, with respect to any specified Person, any other Person directly or indirectly controlling, controlled by, or under common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by," and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement, or otherwise. For the avoidance of doubt, (a) any Person beneficially owning ten percent (10%) or more of the total voting power of the Voting Stock of a specified Person shall be presumed to be an Affiliate of such specified Person, and (b) neither the Trustee nor the Security Agent shall be deemed an Affiliate of either Issuer solely by reason of acting in its capacity as such.
"Agent" means the Security Agent.
"Anchor Bay Securities" or "ABS" means Anchor Bay Securities LLC, a limited liability company organized under the laws of the State of Delaware, with offices at 599 Lexington Avenue, 28th Floor, New York, New York 10022, United States of America.
"Applicable Premium" means, with respect to any Note on any Redemption Date during the Make-Whole Period, the greater of (a) 1.0% of the principal amount of such Note and (b) the excess, if any, of (i) the present value at such Redemption Date of (A) the redemption price of such Note at October 15, 2025 (as set forth in Section 3.07(b) hereof), plus (B) all required interest payments due on such Note through October 15, 2025 (excluding accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points, over (ii) the principal amount of such Note.
"Approved Appraiser" means Compass Marine Valuations Ltd., or any other independent ship valuation firm of internationally recognized standing approved by the Trustee (such approval not to be unreasonably withheld, conditioned, or delayed).
"Asset Acquisition" means (a) an investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary, or shall be merged with or into the Company or any Restricted Subsidiary, or (b) the acquisition by the Company or any Restricted Subsidiary of assets of any Person, other than a Restricted Subsidiary, which constitutes all or substantially all of the assets of such Person or of any division or line of business of such Person.
"Asset Sale" means any sale, lease, transfer, conveyance, or other disposition (including by way of merger, consolidation, or Sale and Leaseback Transaction) in any single transaction or series of related transactions of (a) any assets of the Company or any Restricted Subsidiary (other than sales of inventory in the ordinary course of business), or (b) any Equity Interests in any Restricted Subsidiary held by the Company or any Restricted Subsidiary, in each case, with an aggregate fair market value exceeding Fifteen Million United States Dollars (US$15,000,000) in any single transaction or series of related transactions. Notwithstanding the foregoing, the term "Asset Sale" does not include: (i) a transfer of assets between or among the Company and its Restricted Subsidiaries; (ii) the creation or perfection of a Permitted Lien; (iii) the disposition of cash or Cash Equivalents; (iv) the making of a Restricted Payment that is permitted by Section 4.07; or (v) the sale, lease, or other disposition of products, services, or accounts receivable in the ordinary course of business.
"Board of Directors" means (a) with respect to the Company, the board of directors of Thalassa Shipping & Logistics SA, or any authorized committee thereof, and (b) with respect to the Co-Issuer, the sole director of Thalassa Finance Pte. Ltd.
"Business Day" means a day other than a Saturday, a Sunday, or a day on which banking institutions in New York City, New York, United States of America; Singapore; Athens, Greece; or London, England are authorized or required by law, regulation, or executive order to remain closed.
"Capital Lease Obligation" means, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other Indebtedness arrangements conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as a finance lease on a balance sheet of such Person under IFRS and, for purposes of this Indenture, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with IFRS.
"Capital Stock" means (a) in the case of a corporation, any and all shares, interests, participations, or other equivalents (however designated) of corporate stock, including each class of common stock and preferred stock of such corporation, (b) in the case of an association or business entity, any and all shares, interests, participations, rights, or other equivalents (however designated) of corporate stock, (c) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests, and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully guaranteed or insured by the government of the United States of America, the Republic of Singapore, or any member state of the European Union that is a member of the Organisation for Economic Co-operation and Development, or any agency or instrumentality thereof, in each case maturing not more than one year from the date of acquisition; (b) certificates of deposit, time deposits, and eurodollar time deposits with a maturity of one year or less from the date of acquisition, demand deposits, bankers' acceptances with a maturity of not more than one year from the date of acquisition, overnight bank deposits, and money market deposit accounts issued or offered by any financial institution organized under the laws of the United States of America, the Republic of Singapore, any member state of the European Union, or the United Kingdom, in each case having a combined capital and surplus and undivided profits of not less than US$250,000,000; (c) commercial paper having a rating at the time of acquisition of at least A-2 from a nationally recognized statistical rating organization, or the equivalent thereof, maturing within one year after the date of acquisition; and (d) money market funds at least 95% of the assets of which consist of assets of the types described in clauses (a) through (c) above.
"Change of Control" means the occurrence of any of the following events: (i) Dimitrios Kallistratos and/or Kallistratos Maritime Holdings Ltd. (or any other Permitted Holder or group of Permitted Holders) ceasing to beneficially own, directly or indirectly, in the aggregate at least 50% of the total voting power of the Voting Stock of the Company; (ii) the sale, lease, transfer, conveyance, or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, to any Person other than a Permitted Holder; or (iii) the consummation of any transaction (including any merger or consolidation) the result of which is that any Person (other than a Permitted Holder) becomes the beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company, measured by voting power rather than number of shares, or the shareholders of the Company immediately prior to such transaction hold less than 50% of the total voting power of the Voting Stock of the surviving entity or resulting entity in such transaction.
"Ashgrove Enterprises" means Westmark & Co.
"Clearwater" means Clearwater Shipping Finance Ltd., a company organized under the laws of England and Wales, with offices at 1 Fleet Place, London EC4M 7RA, United Kingdom.
"Closing Date" means the date of original issuance of the Notes under this Indenture, which date is targeted to be October 15, 2022, or such other date as the Issuers and the Initial Purchasers may agree.
"Co-Issuer" means Thalassa Finance Pte. Ltd., a private company limited by shares incorporated in the Republic of Singapore with UEN 202209345K.
"Collateral" means all assets and property of the Issuers and the Guarantors that are, from time to time, subject to Liens securing the Notes, the Guarantees, and the other obligations under this Indenture, as more fully described in Article 11 and the Security Documents, including, without limitation, the Collateral Vessels, the Assigned Earnings and Insurances, the Pledged Equity, and the Pledged Intercompany Receivables.
"Collateral Coverage Ratio" means, as of any date of determination, the ratio of (a) the aggregate appraised fair market value of the Collateral Vessels, as determined by the most recent independent desktop valuation delivered by an Approved Appraiser, to (b) the aggregate outstanding principal amount of the Notes then outstanding. As of June 2022, the initial Collateral Coverage Ratio was 2.94x, calculated as US$1,175,000,000 (aggregate appraised value of the 28 Collateral Vessels as valued by Compass Marine Valuations Ltd.) divided by US$400,000,000 (aggregate principal amount of the Notes).
"Collateral Vessels" means the twenty-eight (28) vessels designated on Schedule 1 hereto, each of which is subject to a first-priority Ship Mortgage in favor of the Security Agent, with an aggregate appraised fair market value of One Billion One Hundred Seventy-Five Million United States Dollars (US$1,175,000,000) as of June 2022, as determined by Compass Marine Valuations Ltd., and such additional vessels as may from time to time be designated as Collateral Vessels in accordance with Section 4.16 hereof.
"Company" means Thalassa Shipping & Logistics SA, a société anonyme organized and existing under the laws of the Hellenic Republic, and its successors and assigns.
"Compass Marine Valuations" means Compass Marine Valuations Ltd., an independent ship valuation firm.
"Consolidated Net Income" means, with respect to any Person for any period, the aggregate of the net income (or net loss) of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with IFRS, provided that the following items shall be excluded in computing Consolidated Net Income: (a) any gain (or loss) from Asset Sales, together with any related provision for taxes on such gain (or loss); (b) any extraordinary or non-recurring gain (or loss), together with any related provision for taxes on such gain (or loss); and (c) the cumulative effect of a change in accounting principle.
"Consolidated Net Tangible Assets" means, as of any date of determination, the total amount of assets (less applicable reserves and other properly deductible items) of the Company and its Restricted Subsidiaries, on a consolidated basis, as shown on the most recently available consolidated balance sheet of the Company prepared in accordance with IFRS, after deducting therefrom (a) all goodwill, trade names, trademarks, patents, organizational expenses, and other similar intangible assets, and (b) all current liabilities (excluding any current portion of long-term Indebtedness and the current portion of any Capital Lease Obligations).
"Consolidated Total Debt" means, as of any date of determination, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries, on a consolidated basis, determined in accordance with IFRS, excluding (a) intercompany Indebtedness between the Company and its wholly-owned Restricted Subsidiaries and (b) hedging obligations entered into for bona fide hedging purposes and not for speculation.
"Default" means any event that is, or with the passage of time, the giving of notice, or both, would be, an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or exchangeable), or upon the happening of any event (other than an event within the control of the issuer thereof), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Maturity Date.
"DTC" means The Depository Trust Company, 55 Water Street, New York, New York 10041, United States of America, or its nominee.
"Equity Interests" means Capital Stock and all warrants, options, or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a public or private sale of Capital Stock (other than Disqualified Stock) of the Company or any contribution to the equity capital of the Company.
"Thackeray Partners LLC" means Stonefield Industries.
"Event of Default" has the meaning set forth in Section 6.01 hereof.
"Existing Indebtedness" means Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Closing Date, including specifically (a) the US$190,000,000 bilateral secured ship-finance facility with Meridian Maritime Bank AG, and (b) the US$120,000,000 bilateral secured ship-finance facility with Clearwater Shipping Finance Ltd., both of which are to be refinanced in full with the proceeds of the Notes on the Closing Date. The aggregate Existing Indebtedness to be refinanced is US$310,000,000.
"Fleet" means the total fleet of fifty (50) vessels (consisting of thirty-eight (38) dry-bulk carriers and twelve (12) container feeder vessels) owned by the Company and its Restricted Subsidiaries, as the same may be increased or decreased from time to time.
"Government Securities" means securities that are (a) direct obligations of the government of the United States of America for the payment of which its full faith and credit is pledged, or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the government of the United States of America, in each case, which are not callable or redeemable at the option of the issuer thereof.
"Guarantee" means the guarantee of each Guarantor of the Issuers' obligations under this Indenture and the Notes, as set forth in Article 10 hereof, and each such guarantee individually and collectively.
"Guarantor Subsidiaries" or "Guarantors" means, initially, Thalassa Dry Bulk Operations Ltd., a company organized under the laws of Malta; Thalassa Container Feeder Ltd., a corporation organized under the laws of the Republic of the marshall Islands; Thalassa Port Services FZCO, a free zone company established in Dubai, United Arab Emirates; and Thalassa Freight Solutions Pte. Ltd., a private company limited by shares incorporated in Singapore; together with any future Restricted Subsidiary that accedes as a Guarantor pursuant to Section 4.18 hereof.
"Halcyon Partners" or "HPI" means Halcyon Partners International Ltd., a company organized under the laws of England and Wales, with offices at 25 Old Broad Street, London EC2N 1HQ, United Kingdom.
"Holder" or "Noteholder" means the Person in whose name a Note is registered on the books and records of the Registrar.
"IFRS" means International Financial Reporting Standards as issued by the International Accounting Standards Board, as in effect from time to time.
"Indenture" means this Indenture, as amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms, including by any Supplemental Indenture.
"Initial Purchasers" means, collectively, Anchor Bay Securities LLC and Halcyon Partners International Ltd.
"Intercompany Loan Receivables" means the aggregate intercompany loan receivables in the principal amount of Three Hundred Sixty-Five Million United States Dollars (US$365,000,000) from Thalassa Finance Pte. Ltd., as lender, to the fleet-owning Restricted Subsidiaries (including Thalassa Dry Bulk Operations Ltd. and Thalassa Container Feeder Ltd.), as borrowers, as assigned to Atlas Collateral Agency Pte. Ltd. as first-priority security pursuant to the relevant Security Documents.
"Intercreditor Agreement" means the Intercreditor Agreement dated as of [●], 2022, among the Issuers, the Guarantors, Atlas Collateral Agency Pte. Ltd. (as Security Agent), and Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (as Trustee), as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Interest Payment Date" means April 15 and October 15 of each year, commencing April 15, 2023.
"Investment Grade" means a credit rating of BBB- or higher by Polaris Ratings Group Ltd. (or its equivalent under any successor rating category), or Baa3 or higher by Oceanic Credit Assessments Inc. (or its equivalent under any successor rating category), or the equivalent Investment Grade credit rating from any other internationally recognized rating agency selected by the Company.
"Issuers" means, collectively, the Company and the Co-Issuer, and their respective successors and assigns. Unless the context otherwise requires or unless otherwise specified herein, references to obligations of the "Issuers" shall mean joint and several obligations of the Company and the Co-Issuer.
"Kallistratos Maritime Holdings" or "KMH" means Kallistratos Maritime Holdings Ltd., a BVI Business Company registered under the BVI Business Companies Act, 2004, with its registered office at Craigmuir Chambers, Road Town, Tortola, British Virgin Islands, the beneficial owner of which is Dimitrios Kallistratos.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, encumbrance, charge, preference, priority, or other lien of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest), whether voluntary or imposed by law.
"Make-Whole Period" means the period from and including the Closing Date to but excluding October 15, 2025.
"Maturity Date" means October 15, 2029.
"Maximum Total Net Leverage Ratio" has the meaning set forth in Section 4.09(a) hereof.
"Meridian" means Meridian Maritime Bank AG, a bank organized under the laws of Switzerland, with offices at Talstrasse 18, 8001 Zürich, Switzerland.
"Net Proceeds" means, with respect to any Asset Sale, the aggregate cash proceeds received by the Company or any Restricted Subsidiary in respect of such Asset Sale, including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale, net of (a) all legal, accounting, investment banking, title, and recording tax expenses, commissions, and other fees and expenses incurred, and all taxes paid, estimated to be payable, or required to be reserved as a result of such Asset Sale (after taking into account any available tax credits or deductions and any tax sharing arrangements); (b) all payments made on any Indebtedness that is secured by any assets subject to such Asset Sale, in accordance with the terms of any Lien upon such assets, or that must by its terms, or in order to obtain a necessary consent to such Asset Sale, or by applicable law, be repaid out of the proceeds from such Asset Sale; and (c) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale.
"Notes" means the US$400,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029 issued under this Indenture on the Closing Date, together with any Additional Notes issued from time to time hereunder, treated as a single class for all purposes of this Indenture.
"Offering Memorandum" means the offering memorandum dated [●], 2022, relating to the offering of the Notes, as supplemented or amended.
"Officer" means the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the General Counsel, or any Vice President of the Company or the Co-Issuer, as applicable.
"Officers' Certificate" means a certificate signed by two Officers of the Company, at least one of whom shall be the principal executive officer, principal financial officer, or principal accounting officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is acceptable to the Trustee, acting reasonably, which counsel may be an employee of or counsel to the Issuers.
"Parent Guarantee" means the limited guarantee by Kallistratos Maritime Holdings Ltd. of the Issuers' obligations under this Indenture and the Notes, capped at US$50,000,000 in aggregate, as more fully described in Section 10.03 hereof.
"Paying Agent" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd., in its capacity as paying agent under this Indenture, or any successor paying agent appointed in accordance herewith.
"Pelagos Capital Partners" means Pelagos Capital Partners Fund III LP, a Cayman Islands Exempted Limited Partnership, with its registered office at PO Box 309, Ugland House, George Town, Grand Cayman, Cayman Islands, which holds an 18.0% equity interest in the Company as of the date hereof.
"Permitted Holders" means (a) Dimitrios Kallistratos, (b) Elena Kallistratos-Pavlou, (c) the lineal descendants of Dimitrios Kallistratos and Elena Kallistratos-Pavlou, (d) Kallistratos Maritime Holdings Ltd., and (e) Pelagos Capital Partners Fund III LP and its Affiliates (including Pelagos Capital Management Ltd.).
"Permitted Indebtedness" means Indebtedness of the Company and its Restricted Subsidiaries that is permitted to be incurred pursuant to Section 4.09(b) hereof, regardless of compliance with the Total Net Leverage Ratio.
"Permitted Investments" means (a) any investment in the Company or any Restricted Subsidiary; (b) any investment in Cash Equivalents; (c) any investment in a Person if, as a result of such investment, such Person becomes a Restricted Subsidiary or is merged, consolidated, or amalgamated with or into, or transfers or conveys substantially all its assets to, the Company or a Restricted Subsidiary; (d) any investment in securities or other instruments received in connection with an Asset Sale made pursuant to Section 4.10 or received in settlement of debts created in the ordinary course of business; and (e) hedging obligations entered into for bona fide hedging purposes and not for speculation.
"Permitted Jurisdiction" means the Hellenic Republic, the Republic of Singapore, the Republic of Malta, the Republic of the marshall Islands, and any member state of the European Union or the Organisation for Economic Co-operation and Development.
"Permitted Liens" means Liens that are not prohibited by Section 4.12 hereof, as more fully described therein, including Liens securing the Notes and the Security Documents, Liens securing Permitted Indebtedness, statutory Liens, Liens existing on the Closing Date, Liens on property acquired with purchase money debt, and certain other customary Liens as set forth in Section 4.12.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government, or any agency or political subdivision thereof.
"Pledged Equity" means one hundred percent (100%) of the Equity Interests in Thalassa Finance Pte. Ltd. (UEN 202209345K) and each Guarantor Subsidiary, in each case pledged to the Security Agent pursuant to the relevant Share Pledge Agreements.
"Pledged Intercompany Receivables" means the Intercompany Loan Receivables.
"Polaris Ratings Group" means Polaris Ratings Group Ltd.
"Oceanic Credit Assessments" means Oceanic Credit Assessments Inc.
"Redemption Date" means any date fixed for redemption of Notes pursuant to Article 3 hereof.
"Refinancing Indebtedness" means Indebtedness issued, incurred, or assumed in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, or refund, other Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) of such Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness being extended, refinanced, renewed, replaced, defeased, or refunded (plus all accrued interest thereon and the amount of all fees, expenses, and premiums incurred in connection therewith); (b) such Refinancing Indebtedness has a final maturity date no earlier than the final maturity date of the Indebtedness being refinanced; and (c) such Refinancing Indebtedness is subordinated in right of payment to the Notes, if at all, on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced.
"Registrar" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd., in its capacity as registrar under this Indenture.
"Regulation S" means Regulation S under the U.S. Securities Act of 1933, as amended.
"Replacement Assets" means assets (including Capital Stock of any Person engaged in a Similar Business) that are useful in the shipping, logistics, freight forwarding, and related maritime businesses of the Company and its Restricted Subsidiaries.
"Restricted Payment" has the meaning set forth in Section 4.07 hereof, and includes dividends, distributions, redemptions of Capital Stock, and investments (other than Permitted Investments).
"Restricted Subsidiary" means, with respect to the Company, any Subsidiary of the Company that has not been designated as an Unrestricted Subsidiary pursuant to Section 4.20 hereof.
"Rule 144A" means Rule 144A under the U.S. Securities Act of 1933, as amended.
"Rule 144A Global Note" means the Note in global form representing Notes sold to qualified institutional buyers in reliance on Rule 144A, substantially in the form of Exhibit A hereto.
"Regulation S Global Note" means the Note in global form representing Notes sold to non-U.S. persons in reliance on Regulation S, substantially in the form of Exhibit B hereto.
"Sale and Leaseback Transaction" means any direct or indirect arrangement relating to property now owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary leases it from such Person, other than leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries.
"Security Agent" means Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), in its capacity as security agent under this Indenture and the Security Documents, or any successor security agent appointed hereunder.
"Security Documents" means, collectively, (a) the Deeds of Ship Mortgage covering the Collateral Vessels (in the form of Exhibit D hereto), (b) the Deeds of Assignment of Earnings and Insurances (in the form of Exhibit E hereto), (c) the Share Pledge Agreements covering the Pledged Equity (in the form of Exhibit F hereto), (d) the Assignment of Intercompany Loan Receivables, and (e) any additional security documents executed and delivered from time to time in connection with this Indenture.
"SGX-ST" means Singapore Exchange Securities Trading Limited.
"Ship Mortgages" means the first-priority ship mortgages over each of the Collateral Vessels, granted in favor of the Security Agent for the benefit of the Trustee and the Holders, substantially in the form of Exhibit D hereto.
"Significant Subsidiary" means any Restricted Subsidiary that would be a "significant subsidiary" of the Company within the meaning of Rule 1-02 under Regulation S-X as promulgated under the U.S. Securities Act of 1933, as amended, using the tests set forth therein (or any successor provision), as if such tests were applicable to the Company, substituting a threshold of ten percent (10%) in each case.
"Similar Business" means (a) shipping, logistics, freight forwarding, and related maritime businesses, and (b) any business or activity that is reasonably related, complementary, incidental, or ancillary to the businesses described in clause (a).
"Supplemental Indenture" means any supplemental indenture entered into in accordance with this Indenture, including under Sections 4.18, 9.01, and 9.02 hereof.
"Total Net Leverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated Total Debt minus Unrestricted Cash, to (b) Adjusted EBITDA for the most recently ended four full consecutive fiscal quarters for which internal financial statements are available. For purposes of determining compliance with Section 4.09, the Total Net Leverage Ratio shall be calculated on a pro forma basis after giving effect to the incurrence or assumption of any Indebtedness as if such Indebtedness had been incurred or assumed on the first day of the relevant four-quarter period. On a pro forma basis at the time of the initial offering, the Total Net Leverage Ratio is 1.59x, calculated as (US$400,000,000 minus US$58,300,000) divided by US$214,600,000.
"Transfer Agent" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd., in its capacity as transfer agent under this Indenture, or any successor transfer agent appointed in accordance herewith.
"Treasury Rate" means, as of 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 that has become publicly available at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to October 15, 2025; provided, however, that if the period from such Redemption Date to October 15, 2025 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 such Redemption Date to October 15, 2025 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.
"Trustee" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), in its capacity as trustee under this Indenture, or any successor trustee appointed in accordance herewith.
"Unrestricted Cash" means cash and Cash Equivalents of the Company and its Restricted Subsidiaries that are not subject to any Lien (other than Permitted Liens) and are not otherwise restricted or encumbered.
"Unrestricted Subsidiary" means any Subsidiary of the Company designated by the Board of Directors as an Unrestricted Subsidiary pursuant to and in compliance with Section 4.20 hereof.
"Voting Stock" means, with respect to any Person, the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors (or equivalent governing body) of such Person.
Section 1.02 — Other Definitions.
Each of the following terms is defined in the Section set forth opposite such term:
Section 1.03 — Incorporation by Reference of Singapore Trustees Act and Other Applicable Provisions.
Whenever this Indenture refers to a provision of the Trustees Act (Cap. 337) of the Republic of Singapore (the "Trustees Act"), such provision is incorporated by reference in and made a part of this Indenture. To the extent that this Indenture and the Trustees Act conflict, this Indenture shall govern to the maximum extent permitted by applicable law. The following provisions of the Trustees Act, together with any amendments thereto and any successor provisions, are incorporated herein by reference: those provisions relating to the powers, duties, liabilities, and protections of trustees, the investment of trust funds, and the delegation of trust functions.
Section 1.04 — Rules of Construction.
For purposes of this Indenture, unless the context otherwise requires:
(a) The words "herein," "hereof," "hereto," and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, or other subdivision.
(b) The word "including" (and with correlative meaning "include" and "includes") means including without limiting the generality of any description preceding or succeeding such word and shall be deemed to be followed by the phrase "without limitation."
(c) The word "or" is not exclusive.
(d) All references to currency amounts shall mean lawful money of the United States of America.
(e) Any reference to an agreement (including this Indenture), document, or instrument means such agreement, document, or instrument as amended, modified, supplemented, restated, or replaced from time to time in accordance with its terms and, where applicable, the terms of this Indenture.
(f) Any reference to a Person includes its successors and permitted assigns.
(g) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data required to be submitted pursuant to this Indenture shall be prepared in conformity with, International Financial Reporting Standards ("IFRS") as issued by the International Accounting Standards Board, as in effect from time to time, applied on a consistent basis.
(h) The Table of Contents, cross-reference tables, and headings are for convenience of reference only and shall not affect the interpretation of this Indenture.
(i) References to days mean calendar days unless Business Days are specified.
(j) References to "Sections," "Articles," "Exhibits," and "Schedules" are to sections and articles of, and exhibits and schedules to, this Indenture unless otherwise specified.
ARTICLE 2
THE NOTES
Section 2.01 — Form and Dating.
(a) Global Form. The Notes shall be issued in fully registered form, without coupons, and in global form only. No definitive certificated Notes shall be issued, except in the limited circumstances described herein.
(b) Rule 144A Global Note. Notes sold within the United States to qualified institutional buyers in reliance on Rule 144A under the U.S. Securities Act of 1933, as amended, shall be represented by one or more permanent global notes in definitive, fully registered form (collectively, the "Rule 144A Global Note"). The Rule 144A Global Note shall be deposited with, or on behalf of, The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee of DTC. The proposed CUSIP number for the Rule 144A Global Note is 87265T AA1, and the proposed ISIN is US87265TAA10.
(c) Regulation S Global Note. Notes sold outside the United States to non-U.S. persons in offshore transactions in reliance on Regulation S under the U.S. Securities Act of 1933, as amended, shall be represented by one or more permanent global notes in definitive, fully registered form (collectively, the "Regulation S Global Note"). The Regulation S Global Note shall be deposited with a common depositary for Stonefield Industries and Westmark & Co. The proposed ISIN for the Regulation S Global Note is XS2498731056, and the proposed Common Code is 249873105.
(d) Minimum Denomination. The Notes shall be issued in minimum denominations of Two Hundred Thousand United States Dollars (US$200,000) and integral multiples of One Thousand United States Dollars (US$1,000) in excess thereof.
(e) Form of Notes. The Notes shall be substantially in the forms set forth in Exhibit A (Form of Rule 144A Global Note) and Exhibit B (Form of Regulation S Global Note) attached hereto, with such changes as may be necessary to reflect the terms hereof. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture. The Issuers and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
(f) Transfer Restriction Legends. Each Global Note shall bear the transfer restriction legends required by applicable securities laws and regulations, including (i) with respect to the Rule 144A Global Note, the Rule 144A restrictive legend and the QIB legend, and (ii) with respect to the Regulation S Global Note, the Regulation S restrictive legend and the non-U.S. person legend. The Trustee shall not register a transfer of any Note unless the conditions for transfer set forth in this Indenture and the applicable legend are satisfied.
Section 2.02 — Execution, Authentication, and Delivery.
(a) Execution. The Notes shall be executed on behalf of each Issuer by the manual or facsimile signatures of authorized signatories. With respect to the Company, the authorized signatories shall be Spyros Andreou, Chief Executive Officer, and/or Marina Demetriou, Chief Financial Officer. With respect to the Co-Issuer, the authorized signatory shall be Marina Demetriou, as sole director of Thalassa Finance Pte. Ltd. The signature of any such authorized signatory on a Note shall be valid and binding notwithstanding that such person may have ceased to hold such office at the time the Note is authenticated and delivered or at any time thereafter.
(b) Authentication. No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until such Note has been authenticated by the manual or electronic signature of an authorized signatory of the Trustee. Such authentication shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. The Trustee shall authenticate and deliver Notes for original issue on the Closing Date in an aggregate principal amount of US$400,000,000 upon receipt of the following:
(i) an Officers' Certificate of each Issuer, each dated the Closing Date, in form and substance satisfactory to the Trustee;
(ii) an Opinion of Counsel, in form and substance satisfactory to the Trustee, confirming that this Indenture has been duly authorized, executed, and delivered by each Issuer and constitutes the valid and binding obligation of each Issuer, enforceable against each Issuer in accordance with its terms (subject to customary qualifications);
(iii) an Opinion of Counsel, in form and substance satisfactory to the Trustee, confirming that the Notes, when authenticated and delivered by the Trustee and issued by the Issuers in the manner described herein, will constitute valid and binding obligations of the Issuers;
(iv) copies of the fully executed Security Documents; and
(v) such other certificates, opinions, and documents as the Trustee may reasonably request.
(c) Delivery. The Trustee shall deliver the authenticated Notes to or upon the order of the Issuers or the Initial Purchasers in accordance with instructions received from the Issuers.
Section 2.03 — Amount Unlimited; Issuance of Additional Notes.
(a) Initial Issuance. The aggregate principal amount of Notes that may be authenticated and delivered on the Closing Date under this Indenture is Four Hundred Million United States Dollars (US$400,000,000).
(b) Additional Notes. The Issuers may issue Additional Notes from time to time after the Closing Date under this Indenture, subject to compliance with the covenants set forth in Article 4 hereof, including the Total Net Leverage Ratio incurrence test set forth in Section 4.09 (requiring that, on a pro forma basis after giving effect to the incurrence of Indebtedness represented by such Additional Notes, the Total Net Leverage Ratio does not exceed 3.50 to 1.00). Any Additional Notes so issued shall be treated as a single class with the Notes originally issued on the Closing Date for all purposes under this Indenture, including voting, redemption, and offers to purchase. Additional Notes shall be issued pursuant to a Supplemental Indenture.
(c) No Limit on Amount. Subject to compliance with the covenants herein, the aggregate principal amount of Notes (including Additional Notes) that may be issued under this Indenture is unlimited.
Section 2.04 — Registrar and Paying Agent.
(a) Marlowe Asset Management Trust Company of Singapore Pte. Ltd. is hereby appointed as the initial Registrar, Paying Agent, and Transfer Agent under this Indenture.
(b) The Issuers may, with the prior written consent of the Trustee (such consent not to be unreasonably withheld), appoint additional or replacement Registrars, Paying Agents, or Transfer Agents from time to time, and may change any Registrar, Paying Agent, or Transfer Agent. The Issuers shall give prompt written notice to the Trustee and the Holders of any such change.
(c) The Issuers shall enter into an appropriate agency agreement with any Registrar, Paying Agent, or Transfer Agent not a party to this Indenture.
Section 2.05 — Paying Agent to Hold Money in Trust.
Not later than each Interest Payment Date, Maturity Date, or Redemption Date, the Issuers shall deposit with the Paying Agent a sum of money (in same-day funds if deposited on the due date) sufficient to make cash payments due on such date. The Paying Agent shall hold in trust for the benefit of the Holders and the Trustee all sums held by it for the payment of principal, premium (if any), or interest on the Notes. The Issuers shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold all sums received by it for the payment of principal, premium (if any), or interest on the Notes in trust for the benefit of the Holders until such sums shall be paid to such Holders or otherwise disposed of as herein provided. If the Issuers or any Affiliate of the Issuers acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all sums held by it as Paying Agent.
Section 2.06 — Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with applicable law regarding Holder lists. If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee, and the Trustee may require any Registrar to furnish to the Trustee, at such times as the Trustee may request in writing (but not more frequently than monthly), a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders. In any event, the Issuers shall provide or cause to be provided to the Trustee such list within five (5) Business Days of any written request therefor by the Trustee.
Section 2.07 — Transfer and Exchange.
(a) General. Subject to the provisions of this Section 2.07, the Holder of any Note may transfer such Note, in whole or in part (provided that any such partial transfer is in a minimum principal amount of US$200,000 and integral multiples of US$1,000 in excess thereof), by surrendering such Note at the office or agency of the Registrar, duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar, together with such certifications, opinions of counsel, and other information as may be required under this Indenture.
(b) Regulation S Transfers. Beneficial interests in the Rule 144A Global Note may be transferred to beneficial interests in the Regulation S Global Note only upon the expiration of the forty (40)-day distribution compliance period applicable under Regulation S, and only upon receipt by the Registrar of a written certification from the transferor (in the form provided in Exhibit B hereto) to the effect that (i) such transfer is being made in compliance with Regulation S, and (ii) the transferee is a non-U.S. person (as defined in Regulation S) and is acquiring the Notes in an offshore transaction within the meaning of Regulation S. Until the expiration of such distribution compliance period, beneficial interests in the Regulation S Global Note shall not be held by any U.S. person (as defined in Regulation S).
(c) Rule 144A Transfers. Beneficial interests in the Regulation S Global Note may be transferred to beneficial interests in the Rule 144A Global Note only upon receipt by the Registrar of a written certification from the transferee (in the form provided in Exhibit A hereto) to the effect that (i) the transferee is a qualified institutional buyer within the meaning of Rule 144A, and (ii) such transfer is being made in compliance with Rule 144A.
(d) DTC, Thackeray Partners LLC, and Ashgrove Enterprises Procedures. Transfers of beneficial interests in the Rule 144A Global Note or the Regulation S Global Note within DTC, Thackeray Partners LLC, or Ashgrove Enterprises shall be made in accordance with the customary rules and operating procedures of such clearing systems. Neither the Issuers, the Trustee, the Registrar, nor the Transfer Agent shall have any obligation or duty to monitor, determine, or inquire as to compliance with any restrictions on transfer imposed under this Indenture or applicable law with respect to any transfer of any beneficial interest in any Global Note within DTC, Thackeray Partners LLC, or Ashgrove Enterprises other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture.
Section 2.08 — Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Trustee receives evidence to its satisfaction of the destruction, loss, or theft of any Note, the Issuers shall execute, and upon receipt of an Officers' Certificate, the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost, or stolen Note, a replacement Note of like tenor and principal amount, bearing a number not contemporaneously outstanding. In every case, the applicant for a replacement Note shall furnish to the Trustee and the Issuers such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss, or theft, the applicant shall also furnish to the Trustee and the Issuers evidence to their satisfaction of the destruction, loss, or theft of the applicant's Note and of the ownership thereof. Each replacement Note shall constitute an original additional contractual obligation of the Issuers, whether or not the Note so replaced shall be at any time enforceable by anyone.
Section 2.09 — Outstanding Notes.
Notes outstanding under this Indenture at any time are all the Notes authenticated by the Trustee except for (a) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation, (b) Notes for which money or Government Securities in the necessary amount has been deposited with the Trustee or the Paying Agent in trust for the Holders of such Notes pursuant to Section 3.05 or Article 8 hereof, provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made, (c) Notes which have been paid in full, and (d) Notes which have been replaced pursuant to Section 2.08, except to the extent that any such replacement Notes are proved not to have been destroyed, lost, or stolen. For purposes of determining whether Holders of the requisite principal amount of Notes have given any direction, consent, or waiver under this Indenture, Notes owned by any Issuer, any Guarantor, or any Affiliate of any Issuer or Guarantor shall be disregarded and deemed not to be outstanding, except that for purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, or waiver, only Notes that the Trustee knows to be so owned shall be so disregarded.
Section 2.10 — Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver, or consent, Notes owned by any Issuer or any Affiliate of any Issuer shall be considered as though not outstanding and shall not be entitled to vote. The Trustee shall not be deemed to have knowledge that any Notes are owned by any Issuer or Affiliate of any Issuer unless a Responsible Officer of the Trustee has actual knowledge of such fact or the Trustee has received written notice thereof from the Issuers or any Holder.
Section 2.11 — Temporary Notes.
Pending the preparation of definitive Notes, if for any reason Global Notes are not available at the time of original issuance, the Issuers may execute, and upon receipt of an Officers' Certificate the Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed, or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions, and other variations as the Officers executing such Notes may determine, as evidenced by their execution of such Notes. If temporary Notes are issued, the Issuers shall cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at any office or agency of the Issuers maintained pursuant to Section 4.02, without charge to the Holder.
Section 2.12 — Cancellation.
All Notes surrendered for payment, redemption, registration of transfer, or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation. The Issuers may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Issuers may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.12, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures.