NEAR-FINAL DRAFT — 5th Draft — Subject to Review Calderwood & Harkness LLP — Matter No. 1044-00004
PAYING AGENT AND TRANSFER AGENT AGREEMENT
dated as of [●], 2022
among
THALASSA SHIPPING & LOGISTICS SA, a Société Anonyme organized under the laws of the Hellenic Republic, as Co-Issuer
THALASSA FINANCE PTE. LTD., a private company limited by shares incorporated in Singapore, as Co-Issuer
and
Marlowe Asset Management TRUST COMPANY OF SINGAPORE PTE. LTD., a private company limited by shares incorporated in Singapore, as Paying Agent and Transfer Agent
$400,000,000 8.750% Senior Secured Notes due 2029
TABLE OF CONTENTS
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PAYING AGENT AND TRANSFER AGENT AGREEMENT
This PAYING AGENT AND TRANSFER AGENT AGREEMENT (this "Agreement") is dated as of [●], 2022, among:
(1) THALASSA SHIPPING & LOGISTICS SA, a Société Anonyme (Ανώνυμη Εταιρεία) organized and existing under the laws of the Hellenic Republic, with its registered office at 42 Akti Miaouli, Piraeus 185 35, Greece, registered with the General Electronic Commercial Registry (GEMI) under number 148276201000 ("TSL" or a "Co-Issuer");
(2) THALASSA FINANCE PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore, 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 ("TFPL" or a "Co-Issuer," and together with TSL, the "Co-Issuers"); and
(3) Marlowe Asset Management TRUST COMPANY OF SINGAPORE PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore, with Unique Entity Number (UEN) 199804782D, and having its registered office at 80 Robinson Road, #02-00, Singapore 068898, acting in its capacity as paying agent and transfer agent hereunder (in such capacity, the "Agent").
Each of the parties identified above is referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Co-Issuers propose to issue $400,000,000 aggregate principal amount of their 8.750% Senior Secured Notes due October 15, 2029 (the "Notes") pursuant to an Indenture dated as of [●], 2022 (as amended, restated, supplemented, or otherwise modified from time to time, the "Indenture") among the Co-Issuers, the Guarantor Subsidiaries party thereto, Marlowe Asset Management Trust Company of Singapore Pte. Ltd. in its capacity as trustee (the "Trustee"), and Atlas Collateral Agency Pte. Ltd., a private company limited by shares incorporated in Singapore (UEN 200115678R), in its capacity as security agent (the "Security Agent");
WHEREAS, the Notes will be offered and sold to Anchor Bay Securities LLC and Halcyon Partners International Ltd. (collectively, the "Initial Purchasers") pursuant to a Purchase Agreement dated as of [●], 2022 (the "Purchase Agreement") among the Co-Issuers, the Guarantor Subsidiaries, and the Initial Purchasers, and the Notes will be issued in the form of one or more global notes (each, a "Global Note" and collectively, the "Global Notes") pursuant to an exemption from registration under the Securities Act of 1933, as amended (the "Securities Act"), including pursuant to Rule 144A under the Securities Act ("Rule 144A") and Regulation S under the Securities Act ("Regulation S");
WHEREAS, the Rule 144A Global Note (proposed CUSIP: 87265T AA1; proposed ISIN: US87265TAA10) will be deposited with, and registered in the name of a nominee of, The Depository Trust Company ("DTC"), for the benefit of beneficial owners holding interests therein through DTC or its participants;
WHEREAS, the Regulation S Global Note (proposed ISIN: XS2498731056; proposed Common Code: 249873105) will be deposited with a common depositary for Stonefield Industries ("Thackeray Partners LLC") and Harborview Industries ("Ashgrove Enterprises"), for the benefit of beneficial owners holding interests therein through Thackeray Partners LLC or Ashgrove Enterprises;
WHEREAS, interest on the Notes is payable semi-annually in arrears on April 15 and October 15 of each year (each, an "Interest Payment Date"), commencing on April 15, 2023, at a rate of 8.750% per annum, computed on the basis of a 360-day year comprised of twelve 30-day months, resulting in aggregate semi-annual interest payments of $17,500,000 (calculated as $400,000,000 multiplied by 8.750% divided by 2);
WHEREAS, the Notes are issuable in minimum denominations of $200,000 and integral multiples of $1,000 in excess thereof;
WHEREAS, the Co-Issuers desire to appoint the Agent as paying agent and transfer agent for the Notes, and the Agent is willing to accept such appointment, in each case on the terms and subject to the conditions set forth herein and in the Indenture; and
WHEREAS, this Agreement is one of the Transaction Documents (as defined in the Indenture), and is entered into in connection with and as contemplated by the Indenture, the Security Documents, the Intercreditor Agreement, and the Registration Rights Agreement (each as defined in the Indenture).
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS AND INTERPRETATION
Section 1.1 — Definitions
As used in this Agreement, the following terms have the meanings assigned to them below:
"Additional Amounts" has the meaning assigned to such term in the Indenture.
"Agent" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), acting in its capacity as paying agent and transfer agent under this Agreement, and any Successor Agent appointed in accordance with Article 8.
"Agreement" means this Paying Agent and Transfer Agent Agreement, as amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
"Beneficial Owner" has the meaning assigned to such term in the Indenture and, with respect to the Global Notes, means each person who holds a beneficial interest in such Global Notes through DTC, Thackeray Partners LLC, Ashgrove Enterprises, or their respective participants.
"Business Day" means any day that is not a Saturday, Sunday, or a day on which banking institutions are authorized or required by law or executive order to close in Singapore, New York City, London, or Athens, Greece, consistent with the definition of such term in the Indenture.
"Ashgrove Enterprises" means Harborview Industries, a société anonyme organized under the laws of the Grand Duchy of Luxembourg, or any successor thereto.
"Closing Date" means the date on which the Notes are first issued and delivered to the Initial Purchasers pursuant to the Purchase Agreement.
"Co-Issuers" means TSL and TFPL, jointly and severally, and their respective successors and permitted assigns under the Indenture.
"Definitive Notes" means certificated Notes in definitive, fully registered form, issued in exchange for interests in Global Notes in the circumstances described in the Indenture and Section 4.4 of this Agreement.
"DTC" means The Depository Trust Company, a limited-purpose trust company organized under the laws of the State of New York, or any successor thereto.
"Thackeray Partners LLC" means Stonefield Industries, a bank organized under the laws of the Kingdom of Belgium, or any successor thereto.
"Global Notes" means the Rule 144A Global Note and the Regulation S Global Note, collectively.
"GST" means any goods and services tax imposed under the Goods and Services Tax Act 1993 of Singapore, as amended from time to time.
"Holder" means, with respect to the Notes, the person in whose name a Note is registered on the Register maintained by the Agent, and has the meaning assigned to such term in the Indenture.
"Indenture" means the Indenture dated as of [●], 2022, among the Co-Issuers, the Guarantor Subsidiaries party thereto, Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (as Trustee), and Atlas Collateral Agency Pte. Ltd. (as Security Agent), as the same may be amended, restated, supplemented, or otherwise modified from time to time, and references herein to the near-final 5th draft of the Indenture mean the draft dated September 6, 2022, prepared by Calderwood & Harkness LLP.
"Intercreditor Agreement" has the meaning assigned to such term in the Indenture.
"Interest Payment Date" means April 15 and October 15 of each year, commencing on April 15, 2023, or if any such date is not a Business Day, the next succeeding Business Day, in accordance with the terms of the Indenture.
"Maturity Date" means October 15, 2029.
"Notes" means the $400,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029 issued by the Co-Issuers pursuant to the Indenture, and includes the Global Notes and any Definitive Notes.
"Payment Office" means the designated office of the Agent at which payments on the Notes may be presented, being initially the office of the Agent at 80 Robinson Road, #02-00, Singapore 068898, or such other office as the Agent may designate from time to time in accordance with Section 2.4.
"Purchase Agreement" has the meaning assigned to such term in the Recitals.
"Record Date" means, with respect to each Interest Payment Date, the fifteenth (15th) calendar day immediately preceding such Interest Payment Date (that is, April 1 with respect to the Interest Payment Date falling on April 15, and October 1 with respect to the Interest Payment Date falling on October 15), whether or not such date is a Business Day.
"Redemption Date" has the meaning assigned to such term in the Indenture.
"Register" means the register of Holders maintained by the Agent pursuant to Section 4.1.
"Registration Rights Agreement" has the meaning assigned to such term in the Indenture.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means the Global Note representing Notes sold in offshore transactions in reliance on Regulation S, bearing the proposed ISIN XS2498731056 and the proposed Common Code 249873105.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Note" means the Global Note representing Notes sold to qualified institutional buyers in reliance on Rule 144A, bearing the proposed CUSIP 87265T AA1 and the proposed ISIN US87265TAA10.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
"Security Agent" means Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), in its capacity as security agent under the Security Documents, and any successor thereto.
"Security Documents" has the meaning assigned to such term in the Indenture.
"Successor Agent" means any entity appointed to replace the Agent as paying agent and transfer agent for the Notes in accordance with Article 8 of this Agreement.
"TFPL" means Thalassa Finance Pte. Ltd. (UEN 202209345K).
"Transaction Documents" has the meaning assigned to such term in the Indenture.
"Transfer Office" means the designated office of the Agent at which transfers and exchanges of Notes may be presented and processed, being initially the office of the Agent at 80 Robinson Road, #02-00, Singapore 068898, or such other office as the Agent may designate from time to time in accordance with Section 2.4.
"Trustee" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), acting in its separate capacity as trustee under the Indenture, and any successor trustee appointed thereunder.
"TSL" means Thalassa Shipping & Logistics SA (GEMI No. 148276201000).
Section 1.2 — Interpretation
(a) Except as otherwise expressly provided herein, terms defined in the Indenture and used but not otherwise defined in this Agreement shall have the meanings given to such terms in the Indenture, and all references herein to the Indenture shall include any amendments, restatements, supplements, or other modifications thereto from time to time.
(b) References in this Agreement to any "Section," "Article," or "Exhibit" shall be to a Section, Article, or Exhibit of this Agreement, unless the context otherwise requires or unless otherwise specified.
(c) References to any "Schedule" shall be to a Schedule attached to this Agreement, each of which is incorporated herein by reference and made a part hereof for all purposes.
(d) The headings and captions used in this Agreement are inserted for convenience of reference only, shall not affect the construction or interpretation of any provision hereof, and shall not be deemed to be a part of this Agreement.
(e) Words importing the singular shall include the plural and vice versa, and words importing any gender shall include all genders. References to "including" shall mean "including without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
(f) References to any agreement, document, or instrument shall mean such agreement, document, or instrument as amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms, unless otherwise expressly provided.
(g) References to "dollars," "$," or "US$" shall mean the lawful currency of the United States of America.
(h) This Agreement shall be interpreted in a manner consistent with the principles of Singapore law as applicable to commercial contracts, including the Interpretation Act 1965 of Singapore (as amended) to the extent applicable.
Section 1.3 — Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore, without regard to its conflict-of-laws principles that would result in the application of the laws of any other jurisdiction. The selection of Singapore law as the governing law of this Agreement is consistent with the choice of governing law under the Indenture and the Security Documents.
ARTICLE 2 — APPOINTMENT
Section 2.1 — Appointment of Paying Agent
(a) The Co-Issuers hereby appoint Marlowe Asset Management Trust Company of Singapore Pte. Ltd. as the paying agent for the Notes, and the Agent hereby accepts such appointment and agrees to act as paying agent for the Notes in accordance with the terms and conditions of this Agreement and the Indenture.
(b) In its capacity as paying agent, the Agent shall act as the principal paying agent for all payments of principal, premium (if any), interest, Additional Amounts (if any), and any other amounts due and payable on or with respect to the Notes, in each case in accordance with the terms of the Indenture and this Agreement.
(c) The Agent shall receive and disburse funds deposited by the Co-Issuers for the purpose of making payments on the Notes, and shall distribute such funds to Holders and Beneficial Owners in the manner prescribed by the Indenture and this Agreement.
(d) The appointment of the Agent as paying agent hereunder shall not relieve the Co-Issuers of their obligations under the Indenture to make timely payments on the Notes. The Co-Issuers remain primarily liable for all payment obligations with respect to the Notes, and the Agent acts solely as agent for the Co-Issuers in making such payments.
Section 2.2 — Appointment of Transfer Agent
(a) The Co-Issuers hereby appoint Marlowe Asset Management Trust Company of Singapore Pte. Ltd. as the transfer agent and registrar for the Notes, and the Agent hereby accepts such appointment and agrees to act as transfer agent and registrar for the Notes in accordance with the terms and conditions of this Agreement and the Indenture.
(b) In its capacity as transfer agent and registrar, the Agent shall:
(i) maintain the Register of Holders of the Notes in accordance with Section 4.1;
(ii) process transfers of Notes and interests therein in accordance with Section 4.2;
(iii) process exchanges of Notes for Notes of other authorized denominations in accordance with Section 4.3;
(iv) process exchanges of Global Notes for Definitive Notes in the limited circumstances described in the Indenture and Section 4.4;
(v) authenticate and deliver replacement Notes as required;
(vi) cancel Notes that are surrendered for payment, redemption, transfer, or exchange; and
(vii) coordinate with DTC, Thackeray Partners LLC, and Ashgrove Enterprises, and their respective participants, for the purpose of effecting book-entry transfers of interests in the Global Notes and maintaining accurate records of positions held through such depositories.
(c) The Agent shall maintain such accounts, records, and procedures as are necessary or appropriate to fulfill its duties as transfer agent and registrar, and shall comply with all applicable requirements of DTC, Thackeray Partners LLC, and Ashgrove Enterprises in connection therewith.
Section 2.3 — Dual Capacity
(a) The Parties acknowledge and agree that the Agent acts under this Agreement in its capacity as paying agent and transfer agent, and separately under the Indenture in its capacity as Trustee. The rights, duties, protections, immunities, and indemnities of the Agent in its capacity as paying agent and transfer agent under this Agreement are separate and distinct from those applicable to it in its capacity as Trustee under the Indenture.
(b) The Agent shall not be required to take any action in its capacity as paying agent or transfer agent under this Agreement that would conflict with, or be inconsistent with, its duties, obligations, or protections as Trustee under the Indenture. In the event of any conflict between the provisions of this Agreement and the provisions of the Indenture as they relate to the Agent's duties or obligations, the provisions of the Indenture shall prevail, and the Agent shall be entitled to act (or refrain from acting) in accordance with the Indenture without incurring any liability under this Agreement.
(c) Nothing in this Agreement shall be construed to impose upon the Agent, in its capacity as paying agent or transfer agent, any duty or obligation of the Trustee under the Indenture, or vice versa, except to the extent expressly provided herein or in the Indenture.
Section 2.4 — Designated Offices
(a) The designated Payment Office of the Agent for purposes of this Agreement shall be:
Marlowe Asset Management Trust Company of Singapore Pte. Ltd. 80 Robinson Road, #02-00 Singapore 068898
Attention: Richard Tan, Vice President, Corporate Trust
Telephone: +65 6228 [●]
(b) The designated Transfer Office of the Agent for purposes of this Agreement shall be the same address as the Payment Office, as specified in clause (a) above.
(c) The Agent may change the location of its Payment Office or Transfer Office by giving not less than thirty (30) days' prior written notice to the Co-Issuers and the Trustee (in its Trustee capacity), and, to the extent required by the Indenture, to the Holders (through DTC, Thackeray Partners LLC, and Ashgrove Enterprises, as applicable). Any such change shall not become effective until the expiration of such thirty (30)-day notice period.
ARTICLE 3 — PAYMENT MECHANICS
Section 3.1 — Deposit of Funds
(a) The Co-Issuers shall, not later than 10:00 a.m. (Singapore time) on the Business Day immediately preceding each Interest Payment Date, the Maturity Date, or any Redemption Date (each such date, a "Payment Date"), deposit or cause to be deposited with the Agent, in immediately available funds denominated in United States Dollars, an amount sufficient to make all required payments of principal, premium (if any), interest, Additional Amounts (if any), and any other amounts then due and payable on the Notes on such Payment Date.
(b) All amounts deposited with the Agent pursuant to this Section 3.1 shall be held by the Agent in a segregated account maintained for the benefit of the Holders and shall be applied exclusively for the purpose of making payments on the Notes in accordance with this Agreement and the Indenture. The Agent shall not commingle such funds with its own assets or the assets of any other person.
(c) If the Co-Issuers fail to deposit, or cause to be deposited, the required funds with the Agent by the time specified in clause (a) above, the Agent shall promptly (and in any event by 12:00 noon (Singapore time) on such Business Day) notify each of the Co-Issuers and the Trustee (in its Trustee capacity) in writing of such failure, specifying the amount of the shortfall. The Agent shall have no obligation to advance its own funds to make any payment on the Notes, and shall not be liable to any Holder or Beneficial Owner for any failure or delay in payment resulting from the Co-Issuers' failure to timely deposit funds.
(d) To the extent the Agent receives funds in excess of the amounts required to be paid on any Payment Date, the Agent shall promptly return such excess funds to the Co-Issuers upon written request.
Section 3.2 — Payment to Holders
(a) On each Interest Payment Date, the Agent shall disburse the aggregate interest payment then due on the Notes to Holders of record as of the applicable Record Date (being April 1 with respect to the Interest Payment Date falling on April 15, and October 1 with respect to the Interest Payment Date falling on October 15). The aggregate semi-annual interest payment on the Notes at the initial aggregate principal amount of $400,000,000 shall be $17,500,000 (calculated as $400,000,000 multiplied by 8.750% divided by 2), subject to adjustment for any principal repayments, redemptions, or cancellations that have reduced the outstanding principal amount prior to such Interest Payment Date.
(b) With respect to interests in the Global Notes held through DTC:
(i) payments of principal, premium (if any), and interest shall be made by the Agent through DTC's same-day funds settlement system, in accordance with the applicable rules and procedures of DTC, to DTC or its nominee as the registered Holder of the Rule 144A Global Note; and
(ii) DTC shall distribute such payments to its participants in accordance with its customary procedures, and such participants shall in turn distribute amounts to the Beneficial Owners of interests in the Rule 144A Global Note in accordance with their own customary procedures.
(c) With respect to interests in the Global Notes held through Thackeray Partners LLC and Ashgrove Enterprises:
(i) payments of principal, premium (if any), and interest shall be made by the Agent to the common depositary for Thackeray Partners LLC and Ashgrove Enterprises, in accordance with the applicable procedures of Thackeray Partners LLC and Ashgrove Enterprises, for the credit of the accounts of the respective participants; and
(ii) Thackeray Partners LLC and Ashgrove Enterprises shall distribute such payments to their respective participants in accordance with their customary procedures, and such participants shall in turn distribute amounts to the Beneficial Owners of interests in the Regulation S Global Note in accordance with their own customary procedures.
(d) With respect to any Definitive Notes issued pursuant to the Indenture:
(i) payments of principal, premium (if any), and interest shall be made by check mailed by first-class mail, postage prepaid, to the registered address of each Holder as it appears on the Register; provided, however, that
(ii) upon the written request of any Holder of Definitive Notes having an aggregate principal amount of $1,000,000 or more, payments shall be made by wire transfer in immediately available funds to a United States Dollar account at a banking institution in the United States designated by such Holder in writing to the Agent not less than fifteen (15) days prior to the applicable Payment Date.
(e) The Agent shall have no responsibility or liability for the distribution of payments by DTC, Thackeray Partners LLC, Ashgrove Enterprises, or any of their respective participants to Beneficial Owners.
Section 3.3 — Defaulted Interest
(a) If the Co-Issuers default in the payment of interest on the Notes when due (any such unpaid interest, "Defaulted Interest"), the Agent shall, as directed by the Trustee, pay such Defaulted Interest to Holders of record on a special record date (the "Special Record Date") fixed by the Agent.
(b) The Special Record Date shall be not less than ten (10) days and not more than fifteen (15) days prior to the date fixed for payment of the Defaulted Interest (the "Defaulted Interest Payment Date"). The Agent shall give notice of the Special Record Date and the Defaulted Interest Payment Date to the Holders not less than ten (10) days prior to the Special Record Date, in accordance with the notice provisions of the Indenture.
(c) The Co-Issuers shall deposit with the Agent sufficient funds to pay the Defaulted Interest not later than the Business Day immediately preceding the Defaulted Interest Payment Date, in accordance with the deposit procedures set forth in Section 3.1.
Section 3.4 — Payment at Maturity or Upon Redemption
(a) At the Maturity Date (October 15, 2029) or upon any optional or mandatory redemption of the Notes in accordance with the terms of the Indenture, the Agent shall pay to the Holders the principal amount of the Notes being paid or redeemed, together with accrued and unpaid interest thereon to but excluding the Maturity Date or the applicable Redemption Date, plus any applicable premium, Additional Amounts, and other amounts due and payable under the Indenture.
(b) The optional redemption premiums applicable to the Notes are set forth in the Indenture and, for the avoidance of doubt, are summarized as follows:
(i) During the first three (3) years following the Closing Date: the Notes may be redeemed at the "make-whole" redemption price, equal to 100% of the principal amount plus the applicable make-whole premium calculated at a discount rate equal to the Treasury Rate plus 50 basis points, plus accrued and unpaid interest;
(ii) During Year 4 (commencing on the third anniversary of the Closing Date): at a redemption price equal to 104.375% of the principal amount, plus accrued and unpaid interest;
(iii) During Year 5 (commencing on the fourth anniversary of the Closing Date): at a redemption price equal to 102.188% of the principal amount, plus accrued and unpaid interest;
(iv) During Year 6 and thereafter (commencing on the fifth anniversary of the Closing Date): at a redemption price equal to 100.000% of the principal amount, plus accrued and unpaid interest;
(v) Equity Clawback: at any time prior to the third anniversary of the Closing Date, up to 40% of the original aggregate principal amount of the Notes may be redeemed at a redemption price equal to 108.750% of the principal amount, plus accrued and unpaid interest, with the net cash proceeds of certain equity offerings, subject to the conditions set forth in the Indenture; and
(vi) Change of Control: upon a Change of Control (as defined in the Indenture), each Holder shall have the right to require the Co-Issuers to repurchase such Holder's Notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest to but excluding the repurchase date.
(c) The Agent shall not be responsible for computing optional redemption prices, make-whole amounts, or any other calculations required in connection with any redemption or repurchase of the Notes. Such calculations shall be provided by the Co-Issuers to the Agent in writing not less than five (5) Business Days prior to the applicable Redemption Date. If any Holder disputes the accuracy of such calculations, the Co-Issuers shall, at their own expense, engage an independent financial advisor of nationally recognized standing to verify the calculation, and the determination of such independent financial advisor shall be binding on the Parties and the Holders absent manifest error.
(d) Upon payment in full of the principal amount and all other amounts due on any Note presented for payment at the Maturity Date or upon redemption, the Agent shall cancel such Note in accordance with Section 4.7.
Section 3.5 — Withholding and Additional Amounts
(a) The Agent is authorized and directed to deduct and withhold from any payments made on the Notes any amounts required to be deducted and withheld therefrom under any applicable tax law, treaty, regulation, or governmental directive, whether now in effect or hereafter enacted, including any withholding taxes imposed by the Hellenic Republic, the Republic of Singapore, or any other applicable jurisdiction.
(b) The Co-Issuers' obligations with respect to Additional Amounts, including their gross-up obligations, are set forth in the Indenture and are not modified or limited by this Agreement. The Agent shall cooperate with the Co-Issuers in determining the amounts required to be withheld and the Additional Amounts, if any, required to be paid, provided that the Agent shall not be responsible for making independent determinations regarding the application of withholding tax provisions or the calculation of Additional Amounts.
(c) The Agent shall promptly remit any withheld amounts to the appropriate tax authority in accordance with applicable law and shall furnish to the Co-Issuers evidence of such payment (including official receipts or certified copies thereof) within thirty (30) days of the date of payment, or as soon as reasonably practicable thereafter.
(d) The Agent shall comply with all applicable tax reporting obligations, including the provision of any information returns or statements required by any applicable tax authority in connection with payments made on the Notes.
Section 3.6 — Unclaimed Funds
(a) Any funds deposited with the Agent for the payment of principal, premium, interest, Additional Amounts, or any other amounts on the Notes that remain unclaimed for a period of two (2) years after the date on which such payment became due and payable shall, upon the written request of the Co-Issuers, be repaid by the Agent to the Co-Issuers. Upon such repayment, the Holders entitled to such unclaimed funds shall thereafter look solely to the Co-Issuers for payment thereof, as unsecured general creditors, and the Agent shall have no further liability or obligation with respect to such unclaimed funds.
(b) The Agent shall, prior to repaying any unclaimed funds to the Co-Issuers, provide the Co-Issuers and the Trustee with a schedule identifying the unclaimed amounts, the Holders to whom such amounts were due, and the original Payment Date. The Agent shall cooperate with the Co-Issuers in complying with any applicable unclaimed property or escheat laws.
Section 3.7 — Currency of Payment
(a) All payments of principal, premium, interest, Additional Amounts, and any other amounts due under the Notes and this Agreement shall be made in United States Dollars.
(b) If, by reason of any applicable law, regulation, governmental directive, or order of a court of competent jurisdiction, any payment on the Notes must be made in a currency other than United States Dollars, the Co-Issuers shall bear any and all costs of currency conversion, including exchange rate differentials, conversion fees, and any shortfall resulting from such conversion. The Agent shall have no obligation to effect any such currency conversion and shall not be liable for any loss arising from exchange rate fluctuations or the cost of conversion.
ARTICLE 4 — TRANSFER AND EXCHANGE
Section 4.1 — Register of Holders
(a) The Agent shall maintain at its Transfer Office a register (the "Register") showing the names and addresses of all registered Holders of the Notes, the aggregate principal amount of Notes held by each such Holder, the certificate numbers (if applicable) of the Notes held by each such Holder, and the dates of issuance, transfer, exchange, and cancellation of the Notes.
(b) The Register shall be maintained in accordance with the requirements of the Indenture, including any provisions thereof relating to the form and content of the Register.
(c) The Register shall be available for inspection by the Co-Issuers and the Trustee (in its Trustee capacity) during normal business hours at the Transfer Office upon not less than two (2) Business Days' prior written notice to the Agent. The Agent shall, upon the reasonable request of the Co-Issuers or the Trustee, provide copies of the Register or excerpts thereof.
(d) The Agent shall treat the person in whose name any Note is registered on the Register as the absolute owner and Holder of such Note for all purposes, including the receipt of payments and the giving of notices and consents, regardless of any notice to the contrary, except as otherwise required by applicable law.
Section 4.2 — Transfers of Notes
(a) Transfers of beneficial interests in the Global Notes shall be effected through book-entry transfers within DTC, Thackeray Partners LLC, or Ashgrove Enterprises, as applicable, in accordance with the rules and procedures of such depositories and their respective participants. The Agent shall cooperate with DTC, Thackeray Partners LLC, and Ashgrove Enterprises in effecting such transfers and shall adjust the positions reflected on the Register accordingly.
(b) Transfers of beneficial interests between the Rule 144A Global Note and the Regulation S Global Note, and transfers of beneficial interests between Global Notes held through DTC and Global Notes held through Thackeray Partners LLC or Ashgrove Enterprises, shall be effected only upon compliance with the certification and transfer restriction requirements set forth in the Indenture and the applicable restrictive legends on the Notes, including the delivery of applicable transfer certificates substantially in the forms attached hereto as Exhibit B (for Rule 144A transfers) and Exhibit C (for Regulation S transfers).
(c) The minimum transfer amount for any transfer of Notes or interests therein shall be $200,000 in principal amount, and integral multiples of $1,000 in excess thereof. The Agent shall not register any transfer that would result in the transferor or the transferee holding Notes in an aggregate principal amount of less than $200,000, unless such holder holds no Notes after giving effect to such transfer.
(d) The Agent shall not register any transfer of Notes during the period beginning on any Record Date and ending on the corresponding Interest Payment Date, or during the period beginning fifteen (15) days prior to the mailing of any notice of redemption and ending on the date of redemption, except as otherwise permitted by the Indenture.
Section 4.3 — Exchange of Notes
(a) Holders may exchange Notes for other Notes of the same aggregate principal amount in different authorized denominations (subject to the minimum denomination of $200,000 and integral multiples of $1,000 in excess thereof) by surrendering the Notes to be exchanged at the Transfer Office, accompanied by a written request for exchange specifying the denominations of the replacement Notes to be issued.
(b) Upon receipt of Notes surrendered for exchange, together with a duly completed and executed request for exchange, the Agent shall cancel the surrendered Notes and shall authenticate and deliver to the Holder replacement Notes in the aggregate principal amount equal to the aggregate principal amount of the surrendered Notes, in the authorized denominations specified by the Holder, in accordance with the terms of the Indenture.
(c) No service charge shall be imposed by the Agent for any exchange of Notes, but the Co-Issuers may require payment of a sum sufficient to cover any applicable stamp tax or other governmental charge payable in connection therewith.
Section 4.4 — Exchange of Global Notes for Definitive Notes
(a) Beneficial interests in the Global Notes may be exchanged for Definitive Notes only in the limited circumstances described in the Indenture, including:
(i) if DTC (with respect to the Rule 144A Global Note) or Thackeray Partners LLC and Ashgrove Enterprises (with respect to the Regulation S Global Note) notify the Co-Issuers that they are unwilling or unable to continue to act as depositary for the Global Notes, and no successor depositary has been appointed within ninety (90) days of such notification;
(ii) if DTC (with respect to the Rule 144A Global Note) or Thackeray Partners LLC and Ashgrove Enterprises (with respect to the Regulation S Global Note) cease to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, or cease to be eligible to act as a depositary, and no successor depositary has been appointed within ninety (90) days;
(iii) upon the occurrence and continuance of an Event of Default (as defined in the Indenture), if Holders of a majority in aggregate principal amount of the outstanding Notes so request; or
(iv) at the election of the Co-Issuers, in their sole discretion.
(b) Upon the occurrence of any such event, the Agent shall, upon receipt of instructions from the applicable depositary or the Co-Issuers (as the case may be), authenticate and deliver Definitive Notes in authorized denominations, registered in such names and in such principal amounts as the applicable depositary or the Co-Issuers may direct, in exchange for the corresponding beneficial interests in the Global Notes.
(c) Definitive Notes shall bear the restrictive legends required by the Indenture and shall be subject to the same transfer restrictions as the Global Notes.
Section 4.5 — Legends and Transfer Restrictions
(a) All Notes, whether in the form of Global Notes or Definitive Notes, shall bear the restrictive legends required by the Indenture, including legends relating to the restrictions on transfer under Rule 144A and Regulation S of the Securities Act, and any other legends required by applicable law or the terms of the Indenture.
(b) The Agent shall not register any transfer of Notes unless the conditions of transfer set forth in the Indenture and the restrictive legends on the Notes have been satisfied, including the delivery of any applicable transfer certificates, opinions of counsel, or other certifications required by the Indenture. The Agent shall be entitled to rely conclusively on the certifications delivered to it in connection with any such transfer and shall have no obligation to independently verify the accuracy or completeness thereof.
(c) The Agent shall not remove or modify any restrictive legend on any Note except as expressly authorized by the Indenture or upon receipt of written instructions from the Co-Issuers (countersigned by the Trustee, if required by the Indenture) confirming that such removal or modification is permitted.
Section 4.6 — Lost, Stolen, or Destroyed Notes
(a) If any Note is lost, stolen, mutilated, or destroyed, the Agent shall authenticate and deliver a replacement Note in the same principal amount and denomination as the lost, stolen, mutilated, or destroyed Note, upon receipt of:
(i) satisfactory evidence of the loss, theft, mutilation, or destruction of such Note, as determined by the Agent in its reasonable discretion;
(ii) an indemnity bond or open penalty bond in a form and amount satisfactory to the Agent and the Trustee, issued by a surety company of recognized standing, protecting the Co-Issuers, the Agent, and the Trustee against any claim that may be made on account of the alleged loss, theft, mutilation, or destruction of such Note; and
(iii) payment of all fees and expenses (including the premium on any such indemnity bond) incurred by the Agent and the Trustee in connection with the issuance of the replacement Note.
(b) In the case of mutilated Notes, the mutilated Note must be surrendered to the Agent for cancellation prior to the issuance of the replacement Note.
(c) Every replacement Note issued pursuant to this Section 4.6 shall constitute a valid and binding obligation of the Co-Issuers, entitled to all of the benefits of the Indenture and this Agreement equally and proportionately with all other Notes of the same series.
Section 4.7 — Cancellation
(a) All Notes surrendered to the Agent for payment at the Maturity Date or upon redemption, or surrendered for transfer or exchange, shall be cancelled by the Agent. Cancelled Notes shall not be reissued or resold.
(b) The Agent shall retain cancelled Notes (or evidence of cancellation in the form of a certificate of destruction or electronic record) in its records and shall deliver such cancelled Notes or evidence of cancellation to the Trustee upon the Trustee's written request.
(c) The Agent shall maintain a record of all Notes cancelled, including the certificate numbers, principal amounts, dates of cancellation, and the reason for cancellation (payment, redemption, transfer, exchange, or replacement).
ARTICLE 5 — DUTIES AND RESPONSIBILITIES OF THE AGENT
Section 5.1 — Standard of Care
(a) The Agent shall perform its duties under this Agreement with reasonable care and in good faith, using the same degree of care and skill that a reasonably prudent professional trust company would exercise in performing similar services under similar circumstances.
(b) The Agent shall not be liable for any action taken, suffered, or omitted by it in good faith and reasonably believed by it to be authorized or within the scope of the authority conferred upon it by this Agreement and the Indenture, except in the case of its own willful misconduct, gross negligence, or fraud.
(c) The Agent shall not be deemed to have knowledge of any fact or event unless and until it has received written notice thereof at its Payment Office or Transfer Office, or a Responsible Officer of the Agent has actual knowledge thereof.
(d) The Agent may consult with counsel (including in-house counsel) in connection with any matter arising under this Agreement, and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by the Agent in good faith and in reliance thereon.
Section 5.2 — Reliance on Documents
(a) The Agent may rely upon, and shall be fully protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, or other paper or document that it believes in good faith to be genuine and to have been signed or presented by the proper party or parties.
(b) The Agent may rely on the written instructions of the Co-Issuers in connection with any matter arising under this Agreement. Such instructions shall be effective if signed by any two (2) of the following authorized signatories of the Co-Issuers:
(i) Spyros Andreou, Chief Executive Officer of TSL;
(ii) Marina Demetriou, Chief Financial Officer of TSL and Sole Director of TFPL; and