FORM OF SUPPLEMENTAL INDENTURE
(GUARANTOR JOINDER)
Supplemental Indenture
dated as of [●]
among
[INSERT FULL LEGAL NAME OF NEW GUARANTOR] (the "New Guarantor"),
THALASSA SHIPPING & LOGISTICS SA,
THALASSA FINANCE PTE. LTD.,
the Existing Guarantors party hereto,
Marlowe Asset Management TRUST COMPANY OF SINGAPORE PTE. LTD. (as Trustee),
and
ATLAS COLLATERAL AGENCY PTE. LTD. (as Security Agent)
Supplement to the Indenture dated as of [●], 2022 (as amended, restated, supplemented, or otherwise modified from time to time, the "Indenture")
Exhibit [●] to the Indenture
Governed by the Laws of the Republic of Singapore
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RECITALS
A. The Original Indenture. Reference is hereby made to the Indenture dated as of [●], 2022 (as amended, restated, supplemented, or otherwise modified from time to time, the "Indenture"), among 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 (GEMI No. 148276201000) (the "Issuer"), and Thalassa Finance Pte. Ltd., a Singapore private company limited by shares (UEN 202209345K), with its registered office at 8 Marina Boulevard, #36-02, Marina Bay Financial Centre Tower 1, Singapore 018981 (the "Co-Issuer," and together with the Issuer, the "Co-Issuers"), the Guarantors named therein, Marlowe Asset Management Trust Company of Singapore Pte. Ltd. (UEN 199804782D), with its registered office at 80 Robinson Road, #02-00, Singapore 068898 (the "Trustee"), and Atlas Collateral Agency Pte. Ltd. (UEN 200115678R), with its registered office at 80 Robinson Road, #02-00, Singapore 068898 (the "Security Agent"). Pursuant to the Indenture, the Co-Issuers issued $400,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029 (the "Notes").
B. The Existing Guarantors. The existing Guarantors under the Indenture include each of the following entities, together with any other Subsidiaries that have previously acceded as Guarantors pursuant to the terms of the Indenture: (i) Thalassa Dry Bulk Operations Ltd., a limited liability company organized under the laws of Malta; (ii) Thalassa Container Feeder Ltd., a limited liability company organized under the laws of the Republic of the marshall Islands; (iii) Thalassa Port Services FZCO, a free zone company organized under the laws of the Emirate of Dubai, United Arab Emirates; and (iv) Thalassa Freight Solutions Pte. Ltd., a Singapore private company limited by shares (collectively, together with any other Subsidiaries that have previously acceded as Guarantors under the Indenture, the "Existing Guarantors").
C. Requirement to Accede. Section [●] of the Indenture (the "Additional Guarantor" covenant) requires that, upon certain conditions being satisfied, including, without limitation, the acquisition or creation of a Restricted Subsidiary, or as otherwise required by the incurrence-based leverage test set forth in Section [●] of the Indenture, or the covenant governing designation of Restricted Subsidiaries set forth in Section [●] of the Indenture, each such new Restricted Subsidiary must execute and deliver a supplemental indenture in the form hereof to become a Guarantor and provide an unconditional upstream guarantee of the Co-Issuers' obligations under the Notes and the Indenture.
D. The New Guarantor. [Insert Full Legal Name of New Guarantor] (the "New Guarantor"), a [insert entity type, e.g., private company limited by shares / limited liability company / free zone company] organized under the laws of [insert jurisdiction], with its registered office at [insert address] ([insert registration number, if applicable]), is a direct or indirect Subsidiary of Thalassa Shipping & Logistics SA and is required to become a Guarantor pursuant to Section [●] of the Indenture.
E. Board Authorization. The New Guarantor has duly authorized the execution and delivery of this Supplemental Indenture and the provision of the Guarantee contemplated hereby by all necessary corporate or other entity action, including all required resolutions of its board of directors, shareholders, members, or other governing body, as applicable, and no further consent, approval, or authorization is required in connection therewith.
F. Singapore Law. This Supplemental Indenture is governed by and shall be construed in accordance with the laws of the Republic of Singapore.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1 — DEFINITIONS AND INTERPRETATION
Section 1.01 — Defined Terms.
Capitalized terms used but not otherwise defined in this Supplemental Indenture shall have the respective meanings assigned to such terms in the Indenture. In addition, the following terms shall have the meanings set forth below for all purposes of this Supplemental Indenture:
"Effective Date" means the date on which this Supplemental Indenture is duly executed and delivered by all parties hereto and all conditions precedent set forth in Article 5 hereof have been satisfied or waived in accordance with the terms hereof.
"Guarantee" means the guarantee provided by the New Guarantor pursuant to Section 2.02 hereof, together with all obligations, covenants, agreements, and duties of the New Guarantor under this Supplemental Indenture and the Indenture in its capacity as a Guarantor, and shall have the same meaning as the term "Guarantee" as defined in the Indenture as it applies to the New Guarantor.
"New Guarantor" has the meaning assigned to such term in Recital D of this Supplemental Indenture.
"Supplemental Indenture" means this Form of Supplemental Indenture (Guarantor Joinder), including all annexes, schedules, and exhibits hereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms of the Indenture.
Section 1.02 — Rules of Construction.
(a) The interpretation and construction provisions of Section [●] of the Indenture shall apply to this Supplemental Indenture mutatis mutandis as if set forth herein in full, and the parties hereto agree that such provisions are incorporated herein by reference.
(b) Unless the context otherwise requires, all references in this Supplemental Indenture to articles, sections, annexes, schedules, and exhibits are to articles, sections, annexes, schedules, and exhibits of and to this Supplemental Indenture.
(c) The table of contents and the headings and captions used in this Supplemental Indenture are inserted for convenience of reference only and do not constitute a part of this Supplemental Indenture and shall not be used in construing or interpreting any provision hereof.
(d) The words "hereof," "herein," "hereunder," "hereby," and words of similar import, when used in this Supplemental Indenture, refer to this Supplemental Indenture as a whole and not to any particular section, paragraph, or clause hereof.
(e) The word "including" and words of similar import shall mean "including, without limitation," and corresponding words and phrases shall be construed on the same basis.
(f) Words importing the singular shall include the plural and vice versa, and words importing a gender shall include any gender.
ARTICLE 2 — AGREEMENT TO BE BOUND; GUARANTEE
Section 2.01 — Accession to the Indenture.
(a) The New Guarantor hereby unconditionally and irrevocably agrees to become a party to the Indenture as a "Guarantor" thereunder, with the same force and effect as if the New Guarantor had been an original signatory to the Indenture on the date thereof, and as if the New Guarantor had been named as a "Guarantor" in the preamble and the signature pages of the Indenture as of the date of its original execution.
(b) From and after the Effective Date, the New Guarantor shall be bound by, and shall be entitled to the benefits of, all of the provisions of the Indenture and the Security Documents applicable to a Guarantor, including, without limitation, all covenants, representations, warranties, agreements, undertakings, and obligations of a Guarantor as set forth therein, in each case as if the New Guarantor had originally executed and delivered the Indenture in its capacity as a Guarantor.
(c) Without limiting the generality of the foregoing, the New Guarantor hereby agrees to be bound by all restrictive covenants applicable to Guarantors under the Indenture, including, without limitation:
(i) the incurrence-based leverage test, pursuant to which no Restricted Subsidiary shall incur any Indebtedness unless, after giving pro forma effect to such incurrence, the Maximum Total Net Leverage Ratio does not exceed 3.50 to 1.00;
(ii) the restricted payments covenant, pursuant to which restricted payments shall not exceed the greater of (A) $30,000,000 and (B) 10% of Consolidated Net Tangible Assets, subject to the general and builder baskets set forth in Section [●] of the Indenture;
(iii) the asset sale proceeds covenant, pursuant to which the Co-Issuers and the Restricted Subsidiaries shall apply the Net Proceeds of any Asset Sale in excess of the $15,000,000 threshold as set forth in Section [●] of the Indenture, including, without limitation, the requirement to make an Asset Sale Offer if the aggregate Net Proceeds not applied within 365 days (or 545 days if committed to be applied) exceed $15,000,000;
(iv) all other restrictive covenants applicable to Guarantors, including, without limitation, covenants relating to limitations on liens, transactions with affiliates, merger, consolidation and sale of all or substantially all assets, dividend and other payment restrictions affecting restricted subsidiaries, and reporting obligations; and
(v) all covenants relating to collateral, security, and the maintenance of the collateral coverage ratio as further described in Article 3 hereof.
Section 2.02 — Guarantee.
(a) The New Guarantor hereby unconditionally and irrevocably guarantees, on a joint and several basis with each Existing Guarantor and each other Guarantor under the Indenture, to each holder of the Notes and to the Trustee and the Security Agent and their respective successors and assigns, the full and punctual payment and performance of the following obligations (collectively, the "Guaranteed Obligations"):
(i) the principal of, and premium (if any) on, the Notes, whether at stated maturity (October 15, 2029), upon acceleration pursuant to Section [●] of the Indenture, upon redemption (including at the applicable optional redemption prices: (A) for any optional redemption during the first three years following the Issue Date, at a make-whole redemption price equal to 100% of the principal amount of the Notes being redeemed plus the Applicable Premium, calculated using a discount rate equal to the Treasury Rate plus 50 basis points; (B) for optional redemptions during Year 4, at a redemption price of 104.375% of the principal amount; (C) for optional redemptions during Year 5, at a redemption price of 102.188% of the principal amount; and (D) for optional redemptions during Year 6 and at any time thereafter, at a redemption price of 100.000% of the principal amount; and (E) in connection with any equity clawback, at a redemption price of 108.750% of the principal amount for up to 40% of the original aggregate principal amount of the Notes, subject to the conditions specified in Section [●] of the Indenture), or otherwise;
(ii) interest on the Notes at the rate of 8.750% per annum, payable semi-annually in arrears on April 15 and October 15 of each year, together with any Additional Amounts payable pursuant to Section [●] of the Indenture, and any defaulted interest and any additional interest, fees, and amounts payable on the Notes pursuant to the terms of the Indenture;
(iii) all other amounts payable by the Co-Issuers under or in respect of the Indenture, the Notes, and the Security Documents, including, without limitation, fees, expenses, indemnification obligations, and amounts payable on an accelerated or unaccelerated basis; and
(iv) the payment and performance of all other obligations, liabilities, and amounts due and payable by the Co-Issuers to the Trustee and the Security Agent under the Indenture, the Security Documents, and the Intercreditor Agreement.
(b) The Guarantee provided by the New Guarantor pursuant to this Section 2.02 constitutes a guarantee of payment and performance and not merely a guarantee of collection. The New Guarantor agrees that, in the event of a default in payment or performance of any of the Guaranteed Obligations, the Trustee, the Security Agent, and the holders of the Notes may proceed directly against the New Guarantor under the Guarantee without first pursuing or exhausting any remedy against the Co-Issuers, any other Guarantor, or any collateral securing the Notes.
(c) The Guarantee provided by the New Guarantor pursuant to this Section 2.02 shall rank pari passu in right of payment with all existing and future senior secured Indebtedness of the New Guarantor (subject to the priority provisions of the Intercreditor Agreement) and shall rank senior in right of payment to all existing and future subordinated Indebtedness of the New Guarantor. The Guarantee shall be secured by first-priority Liens on the Collateral provided by the New Guarantor pursuant to Article 3 hereof and the Security Documents, on an equal and ratable basis with all other Obligations secured thereby.
Section 2.03 — Nature of Guarantee.
The Guarantee provided by the New Guarantor pursuant to Section 2.02 hereof is unconditional and absolute, and shall remain in full force and effect until the Guaranteed Obligations are irrevocably paid and performed in full in cash or until the Guarantee is released in accordance with Section 2.07 hereof, irrespective of, and shall not be affected, reduced, limited, impaired, discharged, or released by, any of the following:
(a) any amendment, modification, restatement, supplement, renewal, extension, or waiver of any provision of the Indenture, the Notes, the Security Documents, or any other agreement, instrument, or document relating to the Guaranteed Obligations, in each case whether or not the New Guarantor has been notified of or consented to the same;
(b) any extension, renewal, settlement, compromise, indulgence, forbearance, or discharge of, or any agreement not to enforce or to suspend enforcement of, the obligations of the Co-Issuers, any other Guarantor, or any other Person liable under or in respect of the Notes, the Indenture, or the Security Documents;
(c) any release, exchange, non-perfection, deterioration in value, or impairment of any collateral, security interest, guarantee, or other credit support at any time held by the Trustee, the Security Agent, or any holder of the Notes for the benefit of any such Person;
(d) any change in the corporate structure, ownership, or legal form of the Co-Issuers, any other Guarantor, or any of their respective Subsidiaries, or any merger, amalgamation, consolidation, reorganization, or dissolution of the Co-Issuers, any other Guarantor, or any of their respective Subsidiaries;
(e) any bankruptcy, insolvency, moratorium, reorganization, receivership, liquidation, winding-up, judicial management, scheme of arrangement, or any other similar proceeding affecting the Co-Issuers, any other Guarantor, or any of their respective assets, or any disaffirmance or abandonment by a trustee, receiver, judicial manager, liquidator, or similar official of the Indenture, the Notes, or any related agreement;
(f) any defense, setoff, counterclaim, recoupment, or reduction that the Co-Issuers or any other Guarantor may have against any holder of the Notes, the Trustee, or the Security Agent, or that the New Guarantor may have against the Co-Issuers or any other Guarantor, other than payment in full in cash of the Guaranteed Obligations;
(g) any failure or delay by the Trustee, the Security Agent, or any holder of the Notes to exercise any right or remedy under the Indenture, the Notes, the Security Documents, or at law or in equity, or any single or partial exercise of any such right or remedy; and
(h) any other circumstance, event, or occurrence that might otherwise constitute a legal or equitable defense to, or discharge of, the obligations of the New Guarantor under the Guarantee, whether similar or dissimilar to the foregoing, it being the intent of the parties hereto that the obligations of the New Guarantor under the Guarantee shall be absolute, unconditional, and irrevocable under any and all circumstances.
The New Guarantor hereby expressly waives, to the fullest extent permitted by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the event of any insolvency or bankruptcy proceeding relating to the Co-Issuers or any other Guarantor, any right to require a proceeding first against the Co-Issuers or any other Guarantor, protest, notice of protest, notice of dishonor, and any other notice or demand in connection with the delivery, acceptance, performance, default, or enforcement of the Guaranteed Obligations or the Guarantee.
Section 2.04 — Limitation on Guarantee.
(a) [Insert applicable limitation language, including but not limited to limitations required under corporate benefit, financial assistance, capital maintenance, thin capitalization, or similar rules applicable under the laws of [insert jurisdiction of the New Guarantor]. The specific limitation language must be tailored by local counsel qualified in the jurisdiction of organization of the New Guarantor. By way of example, for the jurisdictions of the Existing Guarantors:
• For a Malta entity (parallel to Thalassa Dry Bulk Operations Ltd.), the limitation language should address the corporate benefit doctrine and financial assistance restrictions under the Companies Act (Cap. 386 of the Laws of Malta);
• For a marshall Islands entity (parallel to Thalassa Container Feeder Ltd.), the limitation language should address the relevant provisions of the marshall Islands Business Corporations Act;
• For a Dubai FZCO (parallel to Thalassa Port Services FZCO), the limitation language should address applicable free zone company law and any restrictions on guarantees by free zone entities under the laws of the Emirate of Dubai and the United Arab Emirates;
• For a Singapore company (parallel to Thalassa Freight Solutions Pte. Ltd.), the limitation language should address the financial assistance provisions of Sections 76 and 76A of the Companies Act 1967 of Singapore and the directors' duties under common law and the Companies Act.]
(b) Notwithstanding any other provision of this Supplemental Indenture or the Indenture, the Guarantee of the New Guarantor shall be limited to the maximum amount that would not render the obligations of the New Guarantor under the Guarantee voidable or unenforceable under applicable fraudulent conveyance, fraudulent transfer, fraudulent preference, corporate benefit, financial assistance, capital maintenance, or similar laws. In furtherance thereof, if at any time the obligations of the New Guarantor under the Guarantee would otherwise exceed the maximum amount permitted under applicable law, the obligations of the New Guarantor under the Guarantee shall be automatically reduced to such maximum amount, and such reduced amount shall constitute the maximum liability of the New Guarantor under the Guarantee for all purposes.
(c) Each holder of the Notes, by accepting a Note, acknowledges and agrees that the Guarantee of the New Guarantor may be subject to limitations under the applicable laws of the jurisdiction of organization of the New Guarantor and that such limitations may affect the amount recoverable under the Guarantee.
Section 2.05 — Subrogation and Contribution.
(a) Until all Guaranteed Obligations under the Indenture and the Notes have been irrevocably paid and performed in full in cash and the Indenture has been discharged or defeased in accordance with its terms, the New Guarantor hereby irrevocably and unconditionally agrees that it shall not exercise, and hereby waives, any right of subrogation, contribution, reimbursement, indemnity, or other claim against the Co-Issuers or any other Guarantor that may arise by reason of any payment made by the New Guarantor under or in respect of the Guarantee, whether such right arises by contract, by operation of law, in equity, or otherwise.
(b) The New Guarantor shall not claim any setoff, recoupment, or counterclaim against the Co-Issuers in respect of any liability of the New Guarantor to the Co-Issuers, or any claim of the New Guarantor against the Co-Issuers, that arises by reason of the Guarantee or any payment made thereunder.
(c) Upon payment in full in cash of all Guaranteed Obligations and discharge or defeasance of the Indenture in accordance with its terms, the New Guarantor shall be subrogated to the rights of the holders of the Notes against the Co-Issuers to the extent of payments made by the New Guarantor under the Guarantee, subject to the prior payment in full of all amounts owing to the holders of the Notes under the Notes and the Indenture.
Section 2.06 — Reinstatement.
If at any time any payment (or any part thereof) made by the Co-Issuers, the New Guarantor, or any other Guarantor in respect of the Guaranteed Obligations is rescinded, set aside, avoided, invalidated, declared to be fraudulent or preferential, or is required to be returned, repaid, or restored for any reason (including, without limitation, in connection with any insolvency, bankruptcy, receivership, judicial management, liquidation, winding-up, reorganization, or similar proceeding affecting the Co-Issuers, the New Guarantor, or any other Guarantor, or as a result of any settlement or compromise with any creditor), the Guarantee of the New Guarantor shall be automatically reinstated and shall continue in full force and effect as if such payment had never been made, and the New Guarantor shall be liable for the full amount of the Guaranteed Obligations as if such payment had not occurred, regardless of any intervening release, discharge, cancellation, or reduction of the Guarantee or the Guaranteed Obligations.
Section 2.07 — Release of New Guarantor.
The Guarantee of the New Guarantor shall be automatically and unconditionally released and discharged, and the New Guarantor shall be released from all of its obligations under the Guarantee and this Supplemental Indenture, upon the occurrence of any of the following events, in each case in accordance with the terms and conditions set forth in Section [●] of the Indenture:
(a) the sale, disposition, or transfer (including by way of merger or consolidation) of all or substantially all of the assets of the New Guarantor to a Person that is not (and that, upon consummation of such transaction, does not become) an Affiliate of the Co-Issuers or any Restricted Subsidiary, provided that such sale, disposition, or transfer is made in compliance with the asset sale covenant set forth in Section [●] of the Indenture and that the Net Proceeds thereof are applied in accordance therewith;
(b) the sale, transfer, or other disposition of all of the Capital Stock of the New Guarantor held by the Co-Issuers and their Restricted Subsidiaries to a Person that is not (and that, upon consummation of such transaction, does not become) an Affiliate of the Co-Issuers or any Restricted Subsidiary, such that the New Guarantor ceases to be a Restricted Subsidiary of the Issuer;
(c) the designation of the New Guarantor as an Unrestricted Subsidiary in accordance with Section [●] of the Indenture, subject to compliance with all applicable conditions and limitations set forth therein, including the restricted payments covenant; and
(d) the discharge or defeasance of the Notes in accordance with Article [●] of the Indenture.
Upon any such release, the Trustee and the Security Agent shall, at the request and expense of the Co-Issuers, execute and deliver such instruments and documents as may be reasonably necessary to evidence and give effect to such release, including the release of any Liens on the assets of the New Guarantor securing the Notes.
ARTICLE 3 — SECURITY
Section 3.01 — Obligation to Provide Security.
(a) The New Guarantor hereby acknowledges and agrees that, in connection with its accession as a Guarantor under the Indenture, it shall, if and to the extent required under Section [●] of the Indenture, promptly execute and deliver to the Security Agent (Atlas Collateral Agency Pte. Ltd.), for the benefit of the Trustee and the holders of the Notes, such additional Security Documents as are necessary to grant first-priority Liens in favor of the Security Agent, for the benefit of the Trustee and the holders of the Notes, over the following assets and property of the New Guarantor (to the extent owned by the New Guarantor on the Effective Date or acquired thereafter):
(i) first-priority ship mortgages over any and all vessels owned by the New Guarantor (whether presently owned or hereafter acquired), in the form of the Deed of Ship Mortgage attached as Exhibit [●] to the Indenture, registered in the applicable ship registry in the flag state of each such vessel;
(ii) first-priority assignments of earnings, insurances, and requisition compensation in respect of any such vessels, in the form of the Deed of Assignment of Earnings and Insurances attached as Exhibit [●] to the Indenture, covering all charter hire, freight, demurrage, and other earnings and revenues derived from the operation of each such vessel, all insurance policies, claims, and proceeds relating to each such vessel, and all requisition compensation payable in respect of each such vessel;
(iii) first-priority pledges of all equity interests in any Restricted Subsidiary directly owned by the New Guarantor, including all shares, membership interests, partnership interests, and other ownership interests, together with all distributions, dividends, and other rights relating thereto, in the form of the Share Pledge Agreement attached as Exhibit [●] to the Indenture; and
(iv) first-priority assignments of any intercompany loan receivables owed to or by the New Guarantor, whether arising under existing or future intercompany loan agreements, promissory notes, or other instruments, in the form of the Deed of Assignment of Intercompany Loans attached as Exhibit [●] to the Indenture.
(b) The New Guarantor acknowledges and agrees that the Indenture requires the maintenance of a minimum collateral coverage ratio of not less than 2.00 to 1.00, tested semi-annually, and that any Collateral provided by the New Guarantor pursuant to this Section 3.01 shall be taken into account in the calculation of such collateral coverage ratio. The New Guarantor shall cooperate with the Co-Issuers, the Trustee, and the Security Agent in connection with the preparation and delivery of all valuations, appraisals, certificates, and other documents required in connection with the semi-annual testing of the collateral coverage ratio.
(c) The New Guarantor shall execute and deliver all such further instruments, agreements, financing statements, and other documents, and shall take all such further actions, as the Security Agent or the Trustee may reasonably request to perfect, protect, and maintain the first-priority Liens created pursuant to the Security Documents over the Collateral of the New Guarantor.
Section 3.02 — Intercreditor Agreement.
The New Guarantor hereby acknowledges and agrees to be bound by all of the terms, conditions, and provisions of the Intercreditor Agreement dated as of [●], 2022, among the Co-Issuers, the Guarantors (as defined therein), the Security Agent, and the Trustee, as amended, restated, supplemented, or otherwise modified from time to time (the "Intercreditor Agreement"), as if the New Guarantor had been an original party thereto in its capacity as a Guarantor. The New Guarantor acknowledges that it has received a copy of the Intercreditor Agreement and is familiar with its terms. Without limiting the generality of the foregoing, the New Guarantor agrees that the rights and remedies of the Trustee, the Security Agent, and the holders of the Notes in respect of the Collateral provided by the New Guarantor shall be subject to the priority and enforcement provisions set forth in the Intercreditor Agreement.
ARTICLE 4 — REPRESENTATIONS AND WARRANTIES OF THE NEW GUARANTOR
The New Guarantor hereby represents and warrants to each of the other parties hereto, as of the Effective Date, as follows:
Section 4.01 — Organization and Existence.
The New Guarantor is a [insert entity type] duly organized, validly existing, and in good standing (or, if applicable, in equivalent status) under the laws of [insert jurisdiction]. The New Guarantor has all necessary corporate or other entity power and authority to own, lease, and operate its assets and properties, to conduct its business as presently conducted and as proposed to be conducted, and to execute, deliver, and perform its obligations under this Supplemental Indenture, the Guarantee, and the Security Documents to which it is or will become a party. The New Guarantor is duly qualified, licensed, or registered to do business in each jurisdiction in which the nature of its business or the ownership, leasing, or operation of its assets requires such qualification, licensing, or registration, except where the failure to be so qualified, licensed, or registered could not reasonably be expected to have a Material Adverse Effect.
Section 4.02 — Authorization.
The execution, delivery, and performance by the New Guarantor of this Supplemental Indenture, the Guarantee, and the Security Documents to which it is or will become a party have been duly authorized by all necessary corporate or other entity action on the part of the New Guarantor, including all required resolutions of its board of directors (or equivalent governing body), shareholders, members, or other persons whose approval is required under the organizational documents of the New Guarantor or applicable law. No further corporate or other entity action, consent, approval, or authorization on the part of the New Guarantor is required in connection with the execution, delivery, or performance of this Supplemental Indenture, the Guarantee, or the Security Documents.
Section 4.03 — Enforceability.
This Supplemental Indenture has been duly executed and delivered by the New Guarantor and constitutes the legal, valid, and binding obligation of the New Guarantor, enforceable against the New Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization, judicial management, and other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
Section 4.04 — No Conflicts.
The execution, delivery, and performance by the New Guarantor of this Supplemental Indenture, the Guarantee, and the Security Documents to which it is or will become a party do not and will not:
(a) violate, conflict with, or result in a breach of, or constitute a default under, the certificate of incorporation, articles of association, memorandum of association, bye-laws, operating agreement, partnership agreement, or other organizational documents of the New Guarantor;
(b) violate any applicable law, statute, rule, regulation, order, decree, judgment, injunction, or other legal requirement of any governmental authority applicable to the New Guarantor or any of its assets or properties;
(c) result in a breach of, or constitute a default (or an event that, with the giving of notice, the lapse of time, or both, would constitute a default) under, or give rise to a right of termination, acceleration, modification, or cancellation under, any material agreement, contract, indenture, mortgage, lease, license, permit, or other instrument or obligation to which the New Guarantor is a party or by which the New Guarantor or any of its assets or properties is bound; or
(d) result in the creation or imposition of any Lien (other than Permitted Liens as defined in the Indenture) on any of the assets or properties of the New Guarantor.
Section 4.05 — Governmental Approvals.
No consent, approval, authorization, license, permit, order, registration, qualification, or filing of or with any governmental authority, regulatory body, or self-regulatory organization is required for the execution, delivery, or performance by the New Guarantor of this Supplemental Indenture, the Guarantee, or the Security Documents to which it is or will become a party, or for the consummation of the transactions contemplated hereby or thereby, except for such consents, approvals, authorizations, licenses, permits, orders, registrations, qualifications, or filings as have already been obtained or made and are in full force and effect.
Section 4.06 — Litigation.
There are no pending or, to the knowledge of the New Guarantor after due inquiry, threatened actions, suits, claims, investigations, arbitrations, or proceedings (whether at law, in equity, or before any governmental authority) against or affecting the New Guarantor or any of its assets or properties that could reasonably be expected to have a material adverse effect on (a) the financial condition, business, operations, or prospects of the New Guarantor, (b) the ability of the New Guarantor to execute, deliver, and perform its obligations under this Supplemental Indenture, the Guarantee, or the Security Documents, or (c) the validity or enforceability of this Supplemental Indenture, the Guarantee, or the Security Documents as against the New Guarantor.
ARTICLE 5 — CONDITIONS PRECEDENT TO EFFECTIVENESS
Section 5.01 — Conditions.
This Supplemental Indenture, and the obligations of the New Guarantor hereunder (including the Guarantee), shall become effective upon satisfaction (or waiver by the Trustee, in its sole discretion) of each of the following conditions precedent:
(a) Execution and Delivery. This Supplemental Indenture shall have been duly executed and delivered by the New Guarantor, the Co-Issuers (acting through the Issuer and the Co-Issuer), the Existing Guarantors, and the Trustee, and a counterpart hereof shall have been delivered to the Security Agent.
(b) Delivery of Supporting Documents. The following documents shall have been delivered to the Trustee (with copies to the Security Agent), in each case in form and substance reasonably satisfactory to the Trustee:
(i) Board Resolutions. A certified copy of the resolutions of the board of directors (or equivalent governing body) of the New Guarantor, duly authorizing the execution, delivery, and performance by the New Guarantor of this Supplemental Indenture, the Guarantee, and the Security Documents to which the New Guarantor is to become a party, together with a certificate of the secretary (or equivalent officer) of the New Guarantor certifying such resolutions and attesting to the incumbency and specimen signatures of the officers of the New Guarantor authorized to execute this Supplemental Indenture on its behalf.
(ii) Officer's Certificate. An Officer's Certificate of the Co-Issuers, substantially in the form attached hereto as Annex A, duly executed by an authorized officer of Thalassa Shipping & Logistics SA, certifying that (A) the accession of the New Guarantor as a Guarantor is required pursuant to Section [●] of the Indenture, (B) all conditions precedent to such accession set forth in Section [●] of the Indenture and Article 5 of this Supplemental Indenture have been duly satisfied or waived, and (C) no Event of Default or Default has occurred and is continuing under the Indenture at the time of execution and delivery of this Supplemental Indenture (or, if the accession of the New Guarantor is required as a result of a transaction that would give rise to a Default if the New Guarantor did not accede, that such Default will be cured upon and by virtue of such accession).
(iii) Legal Opinion. A legal opinion of counsel to the New Guarantor (which may be [insert name of local counsel, as applicable]), substantially in the form described in Annex B hereto, addressed to the Trustee, the Security Agent, and the holders of the Notes, opining as to the matters set forth in Article 4 of this Supplemental Indenture (including, without limitation, due organization, valid existence, corporate power and authority, due authorization, due execution and delivery, enforceability, no conflicts, and no required governmental approvals), in form and substance reasonably satisfactory to the Trustee.
(iv) Security Documents. If applicable and to the extent required by Section 3.01 hereof and Section [●] of the Indenture, duly executed originals of all Security Documents required to be delivered by the New Guarantor, together with evidence that all filings, registrations, and recordings necessary to perfect the Liens created thereby have been made or will be made promptly following the Effective Date.
(c) No Default. No Event of Default or Default (as each such term is defined in the Indenture) shall have occurred and be continuing under the Indenture at the time of execution of this Supplemental Indenture, except that, if the accession of the New Guarantor is required as a result of a transaction that would itself give rise to a Default under the Indenture if the New Guarantor did not accede as a Guarantor, such Default shall be deemed cured upon and by virtue of the accession of the New Guarantor as a Guarantor pursuant to this Supplemental Indenture.
ARTICLE 6 — MISCELLANEOUS PROVISIONS
Section 6.01 — Notices.
(a) All notices, requests, demands, consents, instructions, and other communications to or upon the New Guarantor under or in connection with this Supplemental Indenture or the Indenture shall be in writing and shall be given in accordance with Section [●] of the Indenture (which section is hereby incorporated herein by reference) to the New Guarantor at the address set forth on the signature page hereof, or to such other address as the New Guarantor may designate by written notice to the Trustee, the Security Agent, and the Co-Issuers in accordance with the Indenture.
(b) For reference purposes, the existing notice addresses of the parties to the Indenture are as follows:
If to the Trustee:
Marlowe Asset Management Trust Company of Singapore Pte. Ltd. 80 Robinson Road, #02-00 Singapore 068898
Attention: Richard Tan, Vice President, Corporate Trust
Telephone: [●]
Email: [●]
If to the Security Agent:
Atlas Collateral Agency Pte. Ltd. 80 Robinson Road, #02-00 Singapore 068898
Attention: Karen Ng, Associate Director, Collateral Services
Telephone: [●]
Email: [●]
If to the Issuer:
Thalassa Shipping & Logistics SA 42 Akti Miaouli Piraeus 185 35, Greece
Attention: Alexandros Theodorakis, General Counsel
Telephone: [●]
Email: [●]
If to the Co-Issuer:
Thalassa Finance Pte. Ltd. 8 Marina Boulevard, #36-02 Marina Bay Financial Centre Tower 1 Singapore 018981
Attention: Marina Demetriou, Sole Director
Telephone: [●]
Email: [●]
Section 6.02 — Ratification of Indenture.
(a) Except as expressly supplemented, amended, or modified by this Supplemental Indenture, the Indenture is and shall remain in full force and effect, and all of its terms, conditions, covenants, agreements, representations, and warranties are hereby ratified and confirmed in all respects. In the event of any conflict or inconsistency between the terms of this Supplemental Indenture and the terms of the Indenture, the terms of the Indenture shall control, except to the extent that this Supplemental Indenture expressly modifies or supplements specific provisions of the Indenture with respect to the New Guarantor.
(b) This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound by the terms and provisions of this Supplemental Indenture. All references in the Indenture to "this Indenture," "herein," "hereof," "hereunder," or words of similar import shall be deemed to refer to the Indenture as supplemented by this Supplemental Indenture.
Section 6.03 — Governing Law.
This Supplemental Indenture, and any non-contractual obligations arising out of or in connection with this Supplemental Indenture, shall be governed by and construed in accordance with the laws of the Republic of Singapore, without regard to the conflict of laws principles thereof that would result in the application of the laws of any other jurisdiction.
Section 6.04 — Jurisdiction.
(a) Each party hereto irrevocably and unconditionally submits, for itself and its assets and properties, to the exclusive jurisdiction of the courts of the Republic of Singapore for the purpose of any suit, action, or proceeding arising out of or relating to this Supplemental Indenture, the Guarantee, or the transactions contemplated hereby, and each party hereto irrevocably and unconditionally agrees that all claims in respect of any such suit, action, or proceeding shall be heard and determined in such courts.
(b) Each party hereto irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, action, or proceeding arising out of or relating to this Supplemental Indenture in the courts of the Republic of Singapore, and irrevocably and unconditionally waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
(c) Each party hereto that is not organized under the laws of the Republic of Singapore or does not maintain a registered office in the Republic of Singapore hereby irrevocably appoints [insert name and address of process agent in Singapore] as its agent for service of process in the Republic of Singapore in connection with any suit, action, or proceeding arising out of or relating to this Supplemental Indenture, and agrees that service of process upon such agent shall be deemed, in every respect, effective service of process upon such party.
Section 6.05 — Waiver of Immunity.
To the extent that the New Guarantor or any of its assets, revenues, or properties may be entitled to any immunity from suit, jurisdiction of any court, attachment prior to or in aid of execution, execution of a judgment, setoff, or any other legal process or remedy, the New Guarantor hereby irrevocably and unconditionally waives such immunity to the fullest extent permitted by applicable law, and agrees not to claim or assert any such immunity in any suit, action, or proceeding arising out of or relating to this Supplemental Indenture, the Guarantee, or the Indenture. The New Guarantor agrees that the foregoing waiver shall have effect to the fullest extent permitted under the State Immunity Act 1979 of the Republic of Singapore (or any successor legislation) and under any applicable law in any other relevant jurisdiction.
Section 6.06 — Counterparts.
This Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Supplemental Indenture by facsimile, portable document format (.pdf), or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
Section 6.07 — Successors and Assigns.
This Supplemental Indenture shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors, assigns, heirs, administrators, and legal representatives. No party hereto may assign its rights or delegate its obligations under this Supplemental Indenture except in accordance with the terms of the Indenture.
Section 6.08 — Trustee's Protections.
(a) The Trustee shall not be responsible for the validity, sufficiency, or enforceability of this Supplemental Indenture, the Guarantee, or any Security Document delivered in connection herewith, and makes no representation or warranty with respect thereto.
(b) The Trustee shall be entitled to all protections, immunities, rights, powers, privileges, and indemnities afforded to it under the Indenture in connection with, and with respect to, this Supplemental Indenture and the Guarantee, including, without limitation, those set forth in Article [●] of the Indenture (relating to the rights, duties, and liabilities of the Trustee), as if such provisions were set forth herein in full, and the provisions of such Article are hereby incorporated herein by reference.
(c) The recitals contained herein are made by the Co-Issuers and the New Guarantor only, and the Trustee assumes no responsibility for the correctness, accuracy, or completeness of such recitals. The Trustee shall not be deemed to have made any representation or warranty with respect to the truth or accuracy of any statement, representation, or warranty of any other party contained herein.
(d) The Trustee has accepted its responsibilities under this Supplemental Indenture upon the terms and conditions set forth in the Indenture, including the right to receive compensation and indemnification as therein provided.
Section 6.09 — Security Agent's Protections.
(a) The Security Agent shall not be responsible for the validity, sufficiency, or enforceability of this Supplemental Indenture, the Guarantee, or any Security Document delivered in connection herewith, and makes no representation or warranty with respect thereto.
(b) The Security Agent shall be entitled to all protections, immunities, rights, powers, privileges, and indemnities afforded to it under the Indenture, the Security Documents, and the Intercreditor Agreement in connection with, and with respect to, this Supplemental Indenture and the Guarantee, as if such provisions were set forth herein in full, and the provisions thereof are hereby incorporated herein by reference.
(c) The Security Agent has accepted its responsibilities under this Supplemental Indenture upon the terms and conditions set forth in the Indenture, the Security Documents, and the Intercreditor Agreement, including the right to receive compensation and indemnification as therein provided.
Section 6.10 — Entire Agreement.
This Supplemental Indenture, together with the Indenture, the Notes, the Security Documents, the Intercreditor Agreement, and the other documents, instruments, and agreements referred to therein, constitutes the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the parties hereto with respect to such subject matter.
[Remainder of page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and delivered by their respective duly authorized officers or representatives as of the date first written above.
[INSERT FULL LEGAL NAME OF NEW GUARANTOR] as New Guarantor
By: ________
Name: [Insert name]
Title: [Insert title]
Address for Notices: [Insert address]
Attention: [Insert contact person]
Telephone: [Insert telephone number]
Email: [Insert email address]
THALASSA SHIPPING & LOGISTICS SA as Issuer
By: ________
Name: [Insert authorized signatory]
Title: [Insert title]
Note: Authorized signatories of Thalassa Shipping & Logistics SA for purposes of this Supplemental Indenture include Spyros Andreou (Chief Executive Officer), Marina Demetriou (Chief Financial Officer), and Alexandros Theodorakis (General Counsel), as designated in the board resolutions of Thalassa Shipping & Logistics SA dated [●], 2022.
THALASSA FINANCE PTE. LTD. as Co-Issuer
By: ________
Name: Marina Demetriou
Title: Sole Director
THALASSA DRY BULK OPERATIONS LTD. as Existing Guarantor
By: ________
Name: [Insert name]
Title: [Insert title]