REGISTRATION RIGHTS AGREEMENT
Near-Final Draft — 4th Draft
September 12, 2022
DRAFT — SUBJECT TO FURTHER REVIEW AND COMMENT
Calderwood & Harkness LLP Matter No.: 1044-00004 / Client No.: 80214-TSL Prepared by: Calderwood & Harkness LLP, 125 Broad Street, New York, NY 10004
NOTE: This agreement has not been executed. The offering was suspended on November 14, 2022 and remains dormant. This document is circulated for reference and review purposes only and does not constitute a binding agreement among the parties named herein.
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of [●], 2022, by and among the following parties:
THALASSA SHIPPING & LOGISTICS SA, a Société Anonyme 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 Greek General Electronic Commercial Registry (GEMI) under number 148276201000 (the "Company" and a "Co-Issuer");
THALASSA FINANCE PTE. LTD., a Singapore private company limited by shares, registered with the Accounting and Corporate Regulatory Authority of Singapore under Unique Entity Number 202209345K, with its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981 (the "Co-Issuer SPV" and, together with the Company, the "Co-Issuers" or the "Issuers");
Each of the Guarantors party hereto, namely:
(a) Thalassa Dry Bulk Operations Ltd., a private limited company organized under the laws of Malta;
(b) Thalassa Container Feeder Ltd., a limited liability company organized under the laws of the Republic of the marshall Islands;
(c) Thalassa Port Services FZCO, a free zone company established under the laws of the Emirate of Dubai, United Arab Emirates;
(d) Thalassa Freight Solutions Pte. Ltd., a Singapore private company limited by shares; and
(e) Kallistratos Maritime Holdings Ltd., a BVI business company organized under the BVI Business Companies Act, 2004 (as amended), with its registered office at Craigmuir Chambers, Road Town, Tortola, British Virgin Islands (limited guarantor, with its guarantee capped at $50,000,000),
(each, a "Guarantor" and collectively, the "Guarantors");
ANCHOR BAY SECURITIES LLC, a Delaware limited liability company with offices at 599 Lexington Avenue, 28th Floor, New York, NY 10022 (the "Lead Initial Purchaser"); and
HALCYON PARTNERS INTERNATIONAL LTD., a company incorporated in England and Wales (company number [●]) with offices at 25 Old Broad Street, London EC2N 1HQ, United Kingdom (the "Co-Manager Initial Purchaser" and, together with the Lead Initial Purchaser, the "Initial Purchasers").
Each of the Co-Issuers, the Guarantors, and the Initial Purchasers is sometimes 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 8.750% Senior Secured Notes due 2029 (the "Initial Notes") pursuant to an Indenture (near-final, 5th draft, dated September 6, 2022) (the "Indenture") among the Co-Issuers, the Guarantors, Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), as Trustee (the "Trustee"), and Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), as Security Agent (the "Security Agent");
WHEREAS, the Initial Notes are to be offered and sold by the Initial Purchasers pursuant to a Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"), among the Co-Issuers, the Guarantors, and the Initial Purchasers, in reliance on exemptions from registration under the U.S. Securities Act of 1933, as amended (the "Securities Act"), including Section 4(a)(2) thereof, Rule 144A promulgated thereunder ("Rule 144A"), and Regulation S promulgated thereunder ("Regulation S");
WHEREAS, the Initial Notes will be issued in the form of Rule 144A Global Notes (proposed CUSIP: 87265T AA1; proposed ISIN: US87265TAA10) for sale to qualified institutional buyers (as defined in Rule 144A) and Regulation S Global Notes (proposed ISIN: XS2498731056; proposed Common Code: 249873105) for sale to non-U.S. persons (as defined in Regulation S), in each case in denominations of $200,000 minimum principal amount and integral multiples of $1,000 in excess thereof;
WHEREAS, it is a condition to the obligations of the Initial Purchasers under the Purchase Agreement that the Co-Issuers and the Guarantors execute and deliver this Registration Rights Agreement for the benefit of the holders from time to time of the Initial Notes and the Guarantees (as defined herein);
WHEREAS, the Co-Issuers desire to provide certain registration rights with respect to the Initial Notes and the related guarantees of the Initial Notes (the "Guarantees") as set forth herein, to facilitate the future resale and transferability of such securities;
WHEREAS, the offering of the Initial Notes has been structured for distribution in reliance on Rule 144A (to qualified institutional buyers within the United States) and Regulation S (to non-U.S. persons outside the United States), with a contemplated application for listing of the Initial Notes on the Singapore Exchange Securities Trading Limited ("SGX-ST"), which application was not completed prior to the suspension of the offering; and
WHEREAS, in connection with the foregoing, the Parties desire to set forth their agreements regarding the registration of the Initial Notes, the Exchange Notes (as defined herein), and the Guarantees under the Securities Act.
NOW, THEREFORE, in consideration of 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 agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the following meanings:
"Additional Interest" means the liquidated damages payable by the Co-Issuers upon the occurrence and during the continuation of a Registration Default, as set forth in Section 3.2 of this Agreement.
"Applicable Procedures" means, with respect to any exchange or transfer of Notes, the rules and operational procedures of The Depository Trust Company ("DTC"), Stonefield Industries ("Thackeray Partners LLC"), and Westmark & Co. ("Ashgrove Enterprises"), as applicable, as in effect from time to time, and any successor procedures thereto.
"Broker-Dealer" means any broker or dealer registered as such under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
"Business Day" means any day other than a Saturday, Sunday, or a day on which commercial banking institutions are authorized or required by law, regulation, or executive order to close in New York, New York, the Republic of Singapore, or the City of Piraeus, Greece.
"Closing Date" means the date of the initial issuance of the Initial Notes pursuant to the Indenture and the Purchase Agreement, originally targeted as October 15, 2022.
"Co-Issuers" means Thalassa Shipping & Logistics SA and Thalassa Finance Pte. Ltd., jointly and severally, and their respective successors and assigns under the Indenture.
"Commission" or "SEC" means the U.S. Securities and Exchange Commission, or any successor agency thereto.
"Consummation Deadline" has the meaning set forth in Section 2.1(b) of this Agreement.
"Effectiveness Deadline" has the meaning set forth in Section 2.2(b) of this Agreement.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Exchange Notes" means the new notes to be issued by the Co-Issuers in the Exchange Offer in exchange for the Initial Notes, having terms substantially identical to the Initial Notes except that the Exchange Notes shall not contain transfer restrictions or bear restrictive legends regarding the Securities Act and shall not be entitled to Additional Interest under this Agreement.
"Exchange Offer" means the offer by the Co-Issuers to exchange Exchange Notes for Initial Notes pursuant to Section 2.1 of this Agreement, as more fully described therein.
"Exchange Offer Registration Statement" means the registration statement on Form F-4 (or such other applicable form as may be available to the Co-Issuers under the Securities Act) filed with the SEC in connection with the Exchange Offer, together with all amendments and supplements thereto, including all exhibits and all material incorporated by reference or deemed to be incorporated by reference therein.
"Filing Deadline" has the meaning set forth in Section 2.1(a) of this Agreement.
"GAAP" means generally accepted accounting principles as in effect in the applicable jurisdiction from time to time, applied on a consistent basis.
"Guarantees" means the guarantees of the Notes by each Guarantor, including (a) the full and unconditional upstream guarantees of each of Thalassa Dry Bulk Operations Ltd., Thalassa Container Feeder Ltd., Thalassa Port Services FZCO, and Thalassa Freight Solutions Pte. Ltd. and (b) the limited parent guarantee of Kallistratos Maritime Holdings Ltd. (capped at $50,000,000), in each case as set forth in the Indenture.
"Guarantors" means Thalassa Dry Bulk Operations Ltd., Thalassa Container Feeder Ltd., Thalassa Port Services FZCO, Thalassa Freight Solutions Pte. Ltd., and Kallistratos Maritime Holdings Ltd., and their respective successors and assigns under the Indenture, and any additional entity that becomes a guarantor under the Indenture after the date hereof.
"Holder" means any holder of Registrable Securities from time to time, including the Initial Purchasers so long as they hold Registrable Securities.
"Indenture" means the Indenture dated as of the Closing Date among the Co-Issuers, the Guarantors, 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, supplemented, restated, or otherwise modified from time to time in accordance with its terms.
"Initial Notes" means the $400,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029 issued by the Co-Issuers on the Closing Date pursuant to the Indenture and the Purchase Agreement.
"Initial Purchasers" means Anchor Bay Securities LLC and Halcyon Partners International Ltd., and their respective successors and assigns.
"Losses" has the meaning set forth in Section 5.1 of this Agreement.
"Notes" means, collectively, the Initial Notes and the Exchange Notes.
"Participating Broker-Dealer" means any Broker-Dealer that acquired Initial Notes as a result of market-making activities or other trading activities (and not directly from the Co-Issuers or any affiliate of the Co-Issuers) and that exchanges such Initial Notes for Exchange Notes in the Exchange Offer.
"Person" means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof, or any other entity.
"Private Exchange Notes" means Exchange Notes issued by the Co-Issuers in a private exchange to certain Holders unable to participate in the Exchange Offer, as described in Section 2.1(e) of this Agreement, which Private Exchange Notes shall bear a restrictive legend and be subject to certain transfer restrictions until resold in compliance with the Securities Act.
"Prospectus" means the prospectus included in any Registration Statement (including any preliminary prospectus), as supplemented or amended by any prospectus supplement, and all material incorporated by reference or deemed to be incorporated by reference therein.
"Registrable Securities" means the Initial Notes and the Guarantees thereof; provided, however, that such securities shall cease to be Registrable Securities upon the earliest to occur of (i) the date on which an Exchange Offer Registration Statement has been declared effective by the SEC and the Exchange Offer has been consummated in accordance with Section 2.1 of this Agreement (other than with respect to Initial Notes held by a Holder that has notified the Co-Issuers in writing prior to the consummation of the Exchange Offer that it is unable to participate in the Exchange Offer or that Exchange Notes received thereby would not be freely tradeable), (ii) the date on which a Shelf Registration Statement covering such securities has been declared effective by the SEC and such securities have been disposed of pursuant to such Shelf Registration Statement, (iii) the date on which such securities have been sold pursuant to Rule 144 under the Securities Act (or any successor rule thereto), or (iv) the date on which such securities cease to be outstanding.
"Registration Default" has the meaning set forth in Section 3.1 of this Agreement.
"Registration Statement" means any Exchange Offer Registration Statement or Shelf Registration Statement, as applicable, including all amendments and supplements thereto, and all exhibits and materials incorporated by reference or deemed to be incorporated by reference therein.
"Rule 144" means Rule 144 promulgated under the Securities Act, or any successor rule thereto.
"Rule 144A" means Rule 144A promulgated under the Securities Act, or any successor rule thereto.
"Securities Act" means the U.S. 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 Indenture and the Security Documents, and its successors and assigns in such capacity.
"Shelf Registration Statement" has the meaning set forth in Section 2.2 of this Agreement.
"SGX-ST" means the Singapore Exchange Securities Trading Limited.
"Suspension Period" has the meaning set forth in Section 2.4 of this Agreement.
"Trustee" means Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), in its capacity as trustee under the Indenture, and its successors and assigns in such capacity.
Section 1.2 — Rules of Construction
(a) Unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing a gender include every gender, and references to a Person include its successors and permitted assigns.
(b) References herein to the Indenture, the Purchase Agreement, and any other transaction document shall be to such documents in their near-final form as of the date hereof or, upon execution, in their final executed form, and shall include all amendments, supplements, restatements, and modifications thereto made from time to time in accordance with their respective terms.
(c) All references herein to Articles, Sections, Schedules, and Exhibits are to Articles, Sections, Schedules, and Exhibits of this Agreement unless otherwise specified.
(d) The headings and captions in this Agreement are inserted for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
(e) This Agreement shall be governed by and construed in accordance with the laws of Singapore, consistent with the governing law provisions of the Indenture, the Security Documents, and the Intercreditor Agreement.
(f) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(g) References to "$" or "dollars" shall mean United States dollars unless otherwise specified.
(h) References to any statute or statutory provision shall include such statute or statutory provision as amended, re-enacted, or replaced from time to time, together with all rules, regulations, and orders made thereunder.
ARTICLE 2 — REGISTRATION OBLIGATIONS
Section 2.1 — Exchange Offer Registration
Section 2.1(a) — Filing Obligation
The Co-Issuers shall, at their sole cost and expense, use commercially reasonable efforts to prepare and file with the SEC an Exchange Offer Registration Statement on Form F-4 (or such other applicable form as may be available to the Co-Issuers under the Securities Act) with respect to an offer to exchange the Initial Notes for Exchange Notes within two hundred seventy (270) days after the Closing Date (the "Filing Deadline"). The Exchange Offer Registration Statement shall be prepared in accordance with the requirements of the Securities Act and the rules and regulations promulgated thereunder, and shall contain all information, financial statements, and exhibits required to be included therein pursuant to the Securities Act and the applicable rules and regulations of the SEC.
The Exchange Notes to be issued in the Exchange Offer shall have terms substantially identical in all material respects to the Initial Notes, including without limitation: (i) an interest rate of 8.750% per annum, (ii) a maturity date of October 15, 2029, (iii) the same security package, including first-priority ship mortgages over the twenty-eight (28) Collateral Vessels identified in the Indenture, (iv) the same covenant structure as set forth in the Indenture, and (v) the same ranking provisions; provided, however, that the Exchange Notes shall not (A) contain transfer restrictions applicable to the Initial Notes, (B) bear legends regarding the Securities Act, or (C) entitle the holders thereof to Additional Interest under this Agreement. The Exchange Notes shall be issued under the Indenture and shall constitute "Notes" thereunder.
The Guarantees of the Exchange Notes by each Guarantor shall be identical in all material respects to the Guarantees of the Initial Notes, including, without limitation, the limited parent guarantee of Kallistratos Maritime Holdings Ltd. (capped at $50,000,000).
Section 2.1(b) — Effectiveness and Consummation
The Co-Issuers shall use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective by the SEC as soon as practicable after the filing thereof. The Co-Issuers shall respond promptly to any comments received from the SEC staff with respect to the Exchange Offer Registration Statement and shall use commercially reasonable efforts to resolve all such comments in a timely manner.
The Co-Issuers shall consummate the Exchange Offer no later than three hundred sixty-five (365) days after the Filing Deadline (the "Consummation Deadline"). The Exchange Offer shall remain open for acceptance for a period of not less than twenty (20) Business Days (or such longer period as may be required by applicable law, including Rule 14e-1 under the Exchange Act, to the extent applicable) from the date that notice of the Exchange Offer is mailed or otherwise delivered to Holders of Initial Notes. The Co-Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC.
Each Holder of Initial Notes who validly tenders (and does not validly withdraw prior to the expiration of the Exchange Offer) Initial Notes in the Exchange Offer shall be entitled to receive Exchange Notes in the same aggregate principal amount as the Initial Notes so tendered. No fractional Exchange Notes shall be issued, and the minimum denomination for Exchange Notes shall be $200,000 in principal amount, with integral multiples of $1,000 in excess thereof.
Section 2.1(c) — Conditions to Exchange Offer
The Exchange Offer shall not be subject to any conditions other than the following:
(i) The Exchange Offer Registration Statement shall have been declared effective by the SEC and shall remain effective at the time of the consummation of the Exchange Offer;
(ii) No stop order suspending the effectiveness of the Exchange Offer Registration Statement shall have been issued by the SEC and shall remain in effect;
(iii) No proceeding for the purpose of suspending the effectiveness of the Exchange Offer Registration Statement shall have been initiated or, to the knowledge of the Co-Issuers, threatened by the SEC;
(iv) No injunction or order of any court or governmental authority shall have been issued that would prevent or restrict the consummation of the Exchange Offer;
(v) All governmental approvals, registrations, and filings, if any, necessary for the consummation of the Exchange Offer shall have been obtained or made, as applicable; and
(vi) The Exchange Notes to be issued in the Exchange Offer shall have been accepted for clearance through DTC, Thackeray Partners LLC, and Ashgrove Enterprises, as applicable.
The minimum denomination for Exchange Notes issued in the Exchange Offer shall be $200,000 in principal amount and integral multiples of $1,000 in excess thereof, consistent with the minimum denomination of the Initial Notes.
Section 2.1(d) — Participating Broker-Dealers
Each Participating Broker-Dealer that receives Exchange Notes for Initial Notes in the Exchange Offer shall be permitted to use the Prospectus contained in the Exchange Offer Registration Statement in connection with the offer and sale of such Exchange Notes received in exchange for Initial Notes, where such Initial Notes were acquired by such Participating Broker-Dealer as a result of market-making activities or other trading activities, for a period of one hundred eighty (180) days after the date of consummation of the Exchange Offer (or such shorter period as shall end when all Participating Broker-Dealers shall have disposed of all Exchange Notes acquired by them in the Exchange Offer). The Co-Issuers shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to maintain the usability of the Prospectus contained therein for such period. Each Participating Broker-Dealer utilizing the Prospectus in connection with a resale of Exchange Notes shall be obligated to deliver a copy of the Prospectus (as then supplemented or amended) to the purchaser in such resale.
The Co-Issuers acknowledge and agree that any Participating Broker-Dealer that uses the Prospectus in connection with resales of Exchange Notes as provided in this Section 2.1(d) shall not, by reason of such use, be deemed to be an "underwriter" within the meaning of the Securities Act; provided, however, that each Participating Broker-Dealer shall be required to acknowledge in the letter of transmittal used in the Exchange Offer that it will deliver a Prospectus in connection with any resale of Exchange Notes received in the Exchange Offer.
Section 2.1(e) — Private Exchange
If any Holder of Initial Notes is not permitted by applicable law or SEC policy to participate in the Exchange Offer, or if any Holder of Initial Notes that participates in the Exchange Offer would not receive freely tradeable Exchange Notes in exchange therefor (in each case, upon the advice of counsel to such Holder), the Co-Issuers shall, at the request of such Holder and substantially simultaneously with the consummation of the Exchange Offer, issue and deliver to such Holder Private Exchange Notes in exchange for the Initial Notes held by such Holder, in a private exchange exempt from, or not subject to, registration under the Securities Act. Such Private Exchange Notes shall be identical in all material respects to the Exchange Notes, except that the Private Exchange Notes shall bear a restrictive legend substantially identical to the legend set forth on the Initial Notes and shall remain subject to certain transfer restrictions under the Securities Act until resold in a transaction exempt from, or not subject to, registration thereunder. The Private Exchange Notes shall be issued under the Indenture and shall be entitled to the benefits thereof, including the Guarantees. Any Holder that receives Private Exchange Notes shall retain the right to require the Co-Issuers to file a Shelf Registration Statement covering such Private Exchange Notes in accordance with Section 2.2 of this Agreement.
Section 2.2 — Shelf Registration
Section 2.2(a) — Trigger Events for Shelf Registration
The Co-Issuers shall prepare and file with the SEC a registration statement on Form F-1 (or such other applicable form as may be available to the Co-Issuers under the Securities Act) for the registration of Registrable Securities for resale by the Holders thereof (a "Shelf Registration Statement") if any of the following events shall occur:
(i) The Co-Issuers are not required to file the Exchange Offer Registration Statement or are not permitted to effect the Exchange Offer because of a change in applicable law, SEC rules or regulations, or a change in the generally applicable interpretive positions of the SEC staff published after the date hereof;
(ii) The Exchange Offer is not consummated within the Consummation Deadline for any reason;
(iii) Any Holder of Initial Notes notifies the Co-Issuers in writing within twenty (20) Business Days after the consummation of the Exchange Offer that:
(A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer;
(B) such Holder may not resell Exchange Notes acquired in the Exchange Offer to the public without delivering a prospectus meeting the requirements of the Securities Act and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder; or
(C) such Holder is a Broker-Dealer that holds Initial Notes acquired directly from the Co-Issuers or any affiliate of the Co-Issuers (other than as a result of market-making activities or other trading activities); or
(iv) The Initial Purchasers so request in writing with respect to any Initial Notes that are not eligible for exchange in the Exchange Offer.
Section 2.2(b) — Filing and Effectiveness
If the Co-Issuers are required to file a Shelf Registration Statement pursuant to Section 2.2(a), the Co-Issuers shall file such Shelf Registration Statement with the SEC within sixty (60) days after the date on which the obligation to file the Shelf Registration Statement first arises under Section 2.2(a). The Co-Issuers shall use commercially reasonable efforts to cause the Shelf Registration Statement to become effective under the Securities Act within one hundred twenty (120) days after the date on which the obligation to file the Shelf Registration Statement first arises (the "Effectiveness Deadline").
The Co-Issuers shall keep the Shelf Registration Statement continuously effective and shall maintain the usability of the Prospectus contained therein for the period commencing on the date the Shelf Registration Statement is declared effective and ending on the earlier of:
(i) two (2) years from the Closing Date (or such shorter period ending on the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold thereunder or otherwise cease to be Registrable Securities); and
(ii) the date on which all Registrable Securities covered by the Shelf Registration Statement may be sold without restriction under Rule 144 (including without limitation the requirements of Rule 144(c), (d), (e), and (f), as applicable).
Section 2.2(c) — Shelf Procedures
In connection with any Shelf Registration Statement, the Co-Issuers shall:
(i) cooperate with any selling Holders in connection with any underwritten offering of Registrable Securities off the Shelf Registration Statement, including entering into customary underwriting agreements, providing officers' certificates and customary closing conditions, and making management available for due diligence and road show presentations;
(ii) require each selling Holder to provide the Co-Issuers with such customary seller information as the Co-Issuers may reasonably request for inclusion in the Prospectus, including the identity of such Holder, the amount of Registrable Securities held and proposed to be sold, and the plan of distribution;
(iii) file such supplements and amendments to the Shelf Registration Statement and the Prospectus as may be necessary to maintain the accuracy and completeness of the information contained therein and to comply with the requirements of the Securities Act and the rules and regulations of the SEC; and
(iv) provide each selling Holder and its counsel a reasonable opportunity to review and comment on the Shelf Registration Statement and any amendments or supplements thereto prior to filing.
Section 2.3 — General Registration Procedures
In connection with the filing and effectiveness of any Registration Statement under this Agreement, the Co-Issuers shall comply with the following procedures:
Section 2.3(a) — SEC Filings and Cooperation
The Co-Issuers shall prepare and file with the SEC all documents, amendments, supplements, and post-effective amendments required to be filed in connection with any Registration Statement under the Securities Act and the rules and regulations promulgated thereunder. The Co-Issuers shall include in each Registration Statement all information, financial statements, exhibits, consents, and certifications required by the Securities Act and the applicable rules and regulations of the SEC. The Co-Issuers shall respond to SEC comments promptly and in good faith, and shall furnish to the Initial Purchasers and their counsel (Whitfield & Crane LLP, attention: Thomas Whitfield III, One Liberty Plaza, 165 Broadway, New York, NY 10006) copies of all written correspondence with the SEC relating to any Registration Statement, including all SEC comment letters and all responses thereto, promptly upon the sending or receipt thereof.
Section 2.3(b) — Notification Requirements
The Co-Issuers shall promptly notify each Holder of Registrable Securities, the Initial Purchasers, and the Trustee (Marlowe Asset Management Trust Company of Singapore Pte. Ltd., attention: Richard Tan, Vice President, Corporate Trust, 80 Robinson Road, #02-00, Singapore 068898) of the following events:
(i) the filing of any Registration Statement or any amendment or supplement thereto, including any post-effective amendment;
(ii) the effectiveness of any Registration Statement or any post-effective amendment thereto;
(iii) the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement, or the initiation or threat of any proceeding for that purpose, or the receipt of any notification from the SEC of the suspension of the qualification or exemption from qualification of the Registrable Securities for offer or sale in any jurisdiction;
(iv) any request by the SEC for amendments or supplements to any Registration Statement or the Prospectus contained therein, or for additional information with respect thereto;
(v) the occurrence of any event that makes any statement in the Prospectus untrue in any material respect or that requires the making of any changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(vi) the Co-Issuers' reasonable determination that a post-effective amendment to any Registration Statement is required under the Securities Act or the rules and regulations of the SEC.
Upon the occurrence of any event described in clause (iii) or (v) above, the Co-Issuers shall use commercially reasonable efforts to promptly cure the same and, in the case of clause (v), shall prepare and file a supplement or amendment to the Prospectus as soon as reasonably practicable.
Section 2.3(c) — Furnishing of Documents
The Co-Issuers shall furnish to each Holder of Registrable Securities, the Initial Purchasers, and their respective counsel, without charge, a reasonable number of copies of the Registration Statement (including all exhibits filed therewith), each amendment thereto, the Prospectus (including each preliminary prospectus), each supplement to the Prospectus, and such other documents as any such Person may reasonably request in order to facilitate the disposition of Registrable Securities by such Holder. The Co-Issuers shall also furnish to each such Person, upon reasonable request, copies of all documents incorporated by reference in any Registration Statement or Prospectus.
Section 2.3(d) — Blue Sky Compliance
The Co-Issuers shall use commercially reasonable efforts to register or qualify the Exchange Notes or the Initial Notes, as applicable, for offer and sale under the securities or "blue sky" laws of such jurisdictions within the United States as the Initial Purchasers may reasonably request in writing and shall use commercially reasonable efforts to maintain each such registration or qualification effective during the period such Registration Statement is required to remain effective under this Agreement; provided, however, that the Co-Issuers shall not be required to (i) qualify generally to do business in any jurisdiction where they are not then so qualified, (ii) take any action that would subject the Co-Issuers to general service of process in any such jurisdiction where they are not then so subject, or (iii) subject the Co-Issuers to taxation in any jurisdiction where they are not then so subject.
Section 2.3(e) — Comfort Letters
The Co-Issuers shall use commercially reasonable efforts to obtain from their independent auditor, Kestrel & White Chartered Accountants (contact: Georgios Papadimitriou, Partner, 22 Kifisias Avenue, Marousi 151 25, Athens, Greece), "cold comfort" letters and updates thereof, in each case addressed to the Initial Purchasers, in customary form and covering such matters of the type customarily covered in comfort letters delivered in connection with registered public offerings of debt securities. Such comfort letters shall be delivered at the time of effectiveness of the applicable Registration Statement and at the time of consummation of the Exchange Offer, or, in the case of a Shelf Registration Statement, at the time of effectiveness and in connection with any underwritten offering thereunder. The Co-Issuers shall cause such auditor to provide any necessary consents for the inclusion or incorporation by reference of its audit reports in any Registration Statement.
Section 2.3(f) — Legal Opinions
The Co-Issuers shall furnish (or cause to be furnished) customary legal opinions in connection with the Exchange Offer or any offering under a Shelf Registration Statement from the following counsel:
(i) Calderwood & Harkness LLP (Robert Adeyemi, Partner, 125 Broad Street, New York, NY 10004) — with respect to Singapore law matters and U.S. securities law matters;
(ii) Delphi & Karidis LLP (Nikolaos Karidis, Partner) — with respect to Greek law matters, including the due organization and valid existence of Thalassa Shipping & Logistics SA and the enforceability of the Guarantees under Greek law; and
(iii) Rajendra & Osman LLP (Anil Rajendra, Partner) — with respect to Singapore law matters relating to Thalassa Finance Pte. Ltd., including its due incorporation, valid existence, and corporate authority.
The Initial Purchasers' counsel, Whitfield & Crane LLP (Thomas Whitfield III, Partner, One Liberty Plaza, 165 Broadway, New York, NY 10006), shall be given a reasonable opportunity to review and comment on each such legal opinion prior to its delivery. Such legal opinions shall be addressed to the Initial Purchasers and, in the case of opinions delivered in connection with the Exchange Offer, to the Trustee.
Section 2.3(g) — Listing
The Co-Issuers shall use commercially reasonable efforts to list the Exchange Notes on the SGX-ST, to the extent the Initial Notes were listed thereon prior to the Exchange Offer, or to the extent required by the Indenture. In the event that listing on the SGX-ST is not available or practicable, the Co-Issuers shall use commercially reasonable efforts to obtain an alternative listing on another internationally recognized securities exchange, as may be required by the Indenture. For the avoidance of doubt, no listing of the Initial Notes on the SGX-ST was completed prior to the suspension of the offering on November 14, 2022, and the obligation to list the Exchange Notes shall be subject to the resumption of the offering and the consummation of the Exchange Offer.
Section 2.3(h) — Trustee and Paying Agent Cooperation
The Co-Issuers shall cooperate with the Trustee (Marlowe Asset Management Trust Company of Singapore Pte. Ltd.) and the Paying Agent to facilitate the timely exchange and transfer of Notes through DTC, Thackeray Partners LLC, and Ashgrove Enterprises in accordance with the Applicable Procedures. The Co-Issuers shall take all actions reasonably necessary to facilitate the crediting of Exchange Notes to the accounts of tendering Holders (or their custodians or nominees) through the book-entry transfer facilities of DTC, Thackeray Partners LLC, and Ashgrove Enterprises upon the consummation of the Exchange Offer. Such cooperation shall include providing the Trustee and the Paying Agent with all information and documentation reasonably required under the Paying Agent and Transfer Agent Agreement among the Co-Issuers and Marlowe Asset Management Trust Company of Singapore Pte. Ltd. to effect the exchange, transfer, and delivery of Notes.
Section 2.3(i) — CUSIP / ISIN Numbers
The Co-Issuers shall provide CUSIP and ISIN numbers for the Exchange Notes prior to the consummation of the Exchange Offer and shall ensure that such CUSIP and ISIN numbers are printed on the Exchange Notes (or, in the case of book-entry Notes, reflected in the records of DTC, Thackeray Partners LLC, and Ashgrove Enterprises, as applicable). The Co-Issuers shall provide the Trustee, the Initial Purchasers, and the Holders with written notice of all CUSIP, ISIN, and Common Code numbers assigned to the Exchange Notes promptly upon the assignment thereof.
Section 2.4 — Suspension Periods
Notwithstanding anything to the contrary in this Article 2, the Co-Issuers shall be permitted to suspend the availability and use of the Prospectus included in the Shelf Registration Statement for a period (each, a "Suspension Period") not to exceed sixty (60) consecutive days or one hundred twenty (120) days in the aggregate in any twelve (12)-month period if:
(i) the Board of Directors of Thalassa Shipping & Logistics SA determines in good faith, upon the advice of counsel, that the disclosure of material non-public information would be required in connection with the continued availability of the Prospectus and that such disclosure at such time would be materially adverse to the Co-Issuers, the Guarantors, or their respective businesses, operations, financial condition, or prospects (including without limitation the existence of a pending or proposed acquisition, disposition, financing, or other material transaction, the premature disclosure of which would be materially detrimental); or
(ii) an event has occurred that makes any statement in the Prospectus untrue in any material respect or requires the making of any changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Co-Issuers determine in good faith that the filing of an amendment or supplement to the Prospectus would require the disclosure of material non-public information that the Co-Issuers have a bona fide business purpose for preserving as confidential.
Upon the commencement of any Suspension Period, the Co-Issuers shall give prompt written notice thereof to each Holder of Registrable Securities and the Initial Purchasers (a "Suspension Notice"); provided, however, that the Suspension Notice shall not disclose the nature of the underlying event or the substance of the material non-public information. Upon receipt of a Suspension Notice, each Holder shall forthwith discontinue the disposition of Registrable Securities pursuant to the Shelf Registration Statement and the related Prospectus until such Holder has received copies of a supplemented or amended Prospectus (or is advised in writing by the Co-Issuers that the use of the Prospectus may be resumed). The Co-Issuers shall use commercially reasonable efforts to terminate any Suspension Period as promptly as practicable and, upon the termination of any Suspension Period, shall promptly notify the Holders and the Initial Purchasers in writing and shall promptly prepare and file with the SEC any required amendment or supplement to the Prospectus.
Any Suspension Period shall be included in the calculation of the aggregate period during which the Shelf Registration Statement is required to remain effective under Section 2.2(b), and the effectiveness period shall be extended by the number of days during which any Suspension Period was in effect.
ARTICLE 3 — REGISTRATION DEFAULTS AND ADDITIONAL INTEREST
Section 3.1 — Registration Default Events
A "Registration Default" shall be deemed to have occurred if any of the following events occurs:
(a) Neither the Exchange Offer Registration Statement nor the Shelf Registration Statement has been filed with the SEC on or prior to the applicable Filing Deadline (being two hundred seventy (270) days after the Closing Date, in the case of the Exchange Offer Registration Statement, or sixty (60) days after the date on which the obligation to file arises, in the case of the Shelf Registration Statement);
(b) The Exchange Offer Registration Statement has been filed with the SEC but has not been declared effective by the SEC, or the Exchange Offer has not been consummated, on or prior to the Consummation Deadline (being three hundred sixty-five (365) days after the Filing Deadline);
(c) The Shelf Registration Statement, if required to be filed pursuant to Section 2.2(a), has not been filed with the SEC within sixty (60) days after the date on which the obligation to file arises, or has not been declared effective by the SEC within the Effectiveness Deadline (being one hundred twenty (120) days after the date on which the obligation to file arises); or
(d) After the Shelf Registration Statement has been declared effective by the SEC, such Shelf Registration Statement ceases to be effective, or the Prospectus contained therein ceases to be usable (other than during a permitted Suspension Period) for offers and sales of Registrable Securities, for a period in excess of sixty (60) consecutive days or one hundred twenty (120) days in the aggregate in any twelve (12)-month period (in each case, after giving effect to any permitted Suspension Periods under Section 2.4).
For the avoidance of doubt, a Registration Default under one clause of this Section 3.1 shall not be deemed cured by compliance with any other clause; provided, however, that the occurrence of a Registration Default with respect to the Exchange Offer Registration Statement under clause (a) or (b) shall be deemed cured upon the filing and effectiveness of a Shelf Registration Statement covering the applicable Registrable Securities, subject to the other requirements of this Agreement.
Section 3.2 — Additional Interest
(a) Upon the occurrence and during the continuation of a Registration Default, the Co-Issuers shall pay Additional Interest on the Initial Notes (and, in the case of Private Exchange Notes, on such Private Exchange Notes) at a rate of 0.25% per annum of the aggregate principal amount of such Notes for the first ninety (90)-day period immediately following the date on which such Registration Default first occurs (the "Default Date").
(b) The rate of Additional Interest shall increase by an additional 0.25% per annum of the aggregate principal amount of such Notes with respect to each subsequent ninety (90)-day period during which the Registration Default continues, up to a maximum aggregate Additional Interest rate of 1.00% per annum. For the avoidance of doubt, in no event shall the aggregate rate of Additional Interest payable under this Section 3.2 exceed 1.00% per annum of the aggregate principal amount of the applicable Notes, regardless of the number of Registration Defaults that may have occurred or be continuing.
(c) Additional Interest shall accrue from and including the Default Date to but excluding the date on which all Registration Defaults have been cured (the "Cure Date"). Additional Interest shall cease to accrue on the Cure Date, and no further Additional Interest shall be payable with respect to any Registration Default that has been cured.
(d) Additional Interest shall be payable semi-annually in arrears on April 15 and October 15 of each year (the same dates on which regular interest payments on the Notes are due under the Indenture) to Holders of record of the applicable Notes on the immediately preceding April 1 or October 1 record date, as the case may be. The first payment of Additional Interest, if any, shall be made on the first such payment date occurring after the Default Date. Any Additional Interest accrued but not yet paid as of a Cure Date shall remain payable on the next succeeding payment date.
(e) By way of illustration, on $400,000,000 aggregate principal amount of Initial Notes, the maximum Additional Interest rate of 1.00% per annum would result in Additional Interest of $4,000,000 per annum, or $2,000,000 per semi-annual payment period.
(f) Additional Interest shall be paid through the Trustee (Marlowe Asset Management Trust Company of Singapore Pte. Ltd.) and the Paying Agent in accordance with the procedures set forth in the Indenture for the payment of interest on the Notes, including payment through DTC, Thackeray Partners LLC, and Ashgrove Enterprises to the extent the Notes are held in book-entry form.
Section 3.3 — Exclusive Remedy
The payment of Additional Interest as set forth in this Article 3 shall be the sole and exclusive remedy of the Holders and the Initial Purchasers for any Registration Default, and no Holder or Initial Purchaser shall be entitled to any other remedy at law or in equity with respect to any Registration Default, including specific performance, injunctive relief, or any claim for damages in excess of the Additional Interest provided herein; provided, however, that the payment of Additional Interest shall not relieve the Co-Issuers of their obligations under this Agreement to file, cause to become effective, or maintain the effectiveness of any Registration Statement or to consummate the Exchange Offer, and the Holders and the Initial Purchasers shall retain all rights and remedies available to them to enforce such obligations (other than claims for monetary damages in excess of the Additional Interest provided herein).
ARTICLE 4 — HOLDER OBLIGATIONS AND COOPERATION
Section 4.1 — Holder Information
Each Holder of Registrable Securities that desires to participate in the Exchange Offer or to sell Registrable Securities under a Shelf Registration Statement shall furnish to the Co-Issuers, in writing, such information as is reasonably required by the Co-Issuers for inclusion in the applicable Registration Statement or Prospectus, including without limitation:
(a) the full legal name and address of such Holder (and, if different, the beneficial owner of such Registrable Securities);
(b) the aggregate principal amount of Registrable Securities held by such Holder and proposed to be exchanged or sold, as applicable;
(c) such Holder's beneficial ownership information, including the nature and amount of any equity interest held by such Holder in the Co-Issuers or any Guarantor;
(d) such Holder's proposed plan of distribution, if applicable (in the case of a Shelf Registration Statement); and
(e) such other information regarding such Holder and the proposed transaction as is reasonably necessary to enable the Co-Issuers to comply with the requirements of the Securities Act and the rules and regulations of the SEC.
Each such Holder shall promptly notify the Co-Issuers of any changes in the information previously furnished by such Holder and shall cooperate with the Co-Issuers in the preparation and filing of any amendments or supplements to the Registration Statement or Prospectus necessitated by changes in such information.
Section 4.2 — Holder Obligations in Connection with Exchange Offer
Each Holder tendering Initial Notes in the Exchange Offer shall be required to represent and warrant, in the letter of transmittal or other tender documentation, that:
(i) the Exchange Notes to be received by such Holder in the Exchange Offer are being acquired in the ordinary course of such Holder's business;
(ii) at the time of the consummation of the Exchange Offer, such Holder has no arrangement or understanding with any Person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes to be received in the Exchange Offer;
(iii) such Holder is not an "affiliate" (within the meaning of Rule 405 under the Securities Act) of either of the Co-Issuers or any Guarantor; and
(iv) if such Holder is a Broker-Dealer that will receive Exchange Notes for its own account in exchange for Initial Notes acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a Prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes.
Any Holder that cannot truthfully make each of the foregoing representations shall not be entitled to participate in the Exchange Offer and may, in lieu thereof, request the issuance of Private Exchange Notes pursuant to Section 2.1(e) or request the filing of a Shelf Registration Statement pursuant to Section 2.2(a)(iii).
Section 4.3 — Compliance with Securities Laws
Each Holder of Registrable Securities shall comply with all applicable provisions of the Securities Act, the Exchange Act, and the rules and regulations of the SEC in connection with the sale, transfer, or other disposition of Registrable Securities, whether pursuant to the Exchange Offer, a Shelf Registration Statement, Rule 144, or otherwise. No Holder shall sell, transfer, or otherwise dispose of any Registrable Securities except in compliance with all applicable securities laws and regulations, including any applicable prospectus delivery requirements. The Co-Issuers shall have no liability to any Holder for any failure by such Holder to comply with the requirements of this Section 4.3.
ARTICLE 5 — INDEMNIFICATION AND CONTRIBUTION
Section 5.1 — Indemnification by the Co-Issuers and Guarantors
The Co-Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless each Holder of Registrable Securities, each of the Initial Purchasers (Anchor Bay Securities LLC and Halcyon Partners International Ltd.), and their respective officers, directors, employees, agents, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any of the foregoing (each, an "Indemnified Party"), from and against any and all losses, claims, damages, liabilities, and expenses (including reasonable and documented fees, expenses, and disbursements of counsel, and including any amounts paid in settlement of any litigation with the prior written consent of the Co-Issuers, such consent not to be unreasonably withheld, delayed, or conditioned) (collectively, "Losses") to which any such Indemnified Party may become subject under the Securities Act, the Exchange Act, or any other applicable law or regulation, insofar as such Losses arise out of or are based upon: