LIONO SHIPPING CO. SNOOPY SHIPPING CO. CINDERELLA SHIPPING CO. LUFFY SHIPPING CO.
(2)
1 |
BACKGROUND
|
1.1 |
We refer to the Facility Agreement. This Agreement is supplemental to the Facility Agreement.
|
1.2 |
This Agreement:
|
(a)
|
sets out the main terms for the replacement of LIBOR as the benchmark rate for the calculation of
interest under the Facility Agreement by a successor rate (the “LIBOR Replacement”); and
|
(b) |
effects the
consequential amendments required to the Facility Agreement, to give effect to the LIBOR
Replacement.
|
1.3 |
The Transaction Obligors and the Finance Parties hereby:
|
(a) |
acknowledge that the
discontinuation of LIBOR will affect a great number of facility agreements in the international
or domestic loan markets, as they will need to be amended to provide for a replacement benchmark rate;
|
(b) |
note that it is considered in the
market that the most efficient way to amend such facility agreements (including the Facility
Agreement) is to adopt a standardised approach in their amendment; and
|
(c) |
consequently, accept that the provisions of this Agreement will override any conflicting provisions in the Facility Agreement, without the need to list such provisions or to, otherwise, specifically refer to them in this Agreement.
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2 |
2.1 |
Definitions
|
(a) |
“MAGIC THUNDER”;
|
(b) |
“MAGIC NEBULA”;
|
(c) |
“MAGIC ECLIPSE”; and
|
(d) |
“MAGIC TWILIGHT”.
|
2.2 |
Defined expressions
|
2.3 |
Construction
|
(a) |
References to “this Agreement” shall include the Schedule to it.
|
(b) |
Clause 1.2 (construction of
certain terms) of the Facility Agreement applies to this Agreement as if it were expressly
incorporated in it with any necessary modifications.
|
2.4 |
2.5 |
(a) |
Unless provided to the contrary
in a Finance Document, a person (other than a Finance Party) who is not a party has no right
under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Notwithstanding any term of any Finance Document, the consent of any person who is not a party is not required to rescind or vary this Agreement at any time.
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3 |
3.1 |
Transaction Obligor representations
|
(a) |
it is a corporation, duly
incorporated or formed and validly existing under the laws of its jurisdiction of incorporation
or formation;
|
(b) |
the obligations expressed to be
assumed by it in this Agreement are, subject to any general principles of law limiting its
obligations which are applicable to creditors generally, legal, valid, binding and enforceable obligations;
|
(c) |
the entry into and performance by
it of this Agreement does not and will not:
|
(i) |
conflict
with any law or regulation applicable to it, its constitutional documents or any agreement or
instrument binding upon it or any of its assets; or
|
(ii) |
constitute a
default or termination event (however described) under any agreement o instrument binding on it
or any of its assets; and
|
(d) |
it has the power to enter into,
perform and deliver, and has taken all necessary action to authorise its entry into, performance
and delivery of, this Agreement and, if it is an Obligor, the Amended Facility Agreement.
|
3.2 |
No representations or advice
|
(a) |
Each Transaction Obligor confirms
to each Finance Party that it has made (and shall continue to make) its own independent
investigation and assessment of the merits and effect of the amendments contemplated by this Agreement, including, without limitation:
|
(i) |
the impact
of those amendments on the payments to be made under the Amended Facility Agreement (and under
any associated transaction, including any hedging or derivative transaction entered into or to be entered into in relation to the Amended Facility Agreement);
|
(ii) |
the
administration of, submission of data to, or any other matter related to, any rate referred to
in, or contemplated by, the Amended Facility Agreement;
|
(iii) |
the
suitability of any rate referred to in, or contemplated by, the Amended Facility Agreement for
any Transaction Obligor or any entity related to it; or
|
(iv) |
the
composition or characteristics of any rate referred to in, or contemplated by, the Amended
Facility Agreement, including whether it is similar to, produces the same value or economic equivalence to, or has the same volume or liquidity as, any rate which it replaces (in whole or in part).
|
(b) |
No Finance
Party makes any representation or warranty as to any matter referred to in sub-paragraph (a)
above. Each Transaction Obligor agrees that it has not entered into this Agreement in reliance on any such representation or warranty, acknowledges that it is responsible for taking its own advice in relation to this Agreement and the matters referred to in sub-paragraph (a) above and agrees that it has
not received or relied upon any such advice from any Finance Party, and waives all rights and remedies in respect of those matters.
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4 |
4.1 |
Amendments
|
(a) |
the
amendments set out in the Schedule will take effect and will override any contrary provisions in
the Facility Agreement; and
|
(b) |
this Agreement shall be read
together with the Facility Agreement and, if there is any conflict between this Agreement and
any other provision of any Finance Document, this Agreement will prevail (without prejudice to any rights or obligations accruing before the Effective Date).
|
4.2 |
Consents
|
(a) |
confirms its acceptance of the Amended Facility Agreement;
|
(b) |
agrees that it is bound as an Obligor (as defined in the Amended Facility Agreement);
|
(c) |
confirms
that the definition of, and references throughout each of the Finance Documents to, the Facility
Agreement shall be construed as if the same referred to the Amended Facility Agreement; and
|
(a) |
(if it is a Guarantor) confirms that its guarantee and indemnity:
|
(i) |
continues to
have full force and effect on the terms of the Amended Facility Agreement; and
|
(ii) |
extends to
the obligations of the relevant Obligors under the Amended Facility Agreement and the other
Finance Documents.
|
4.3 |
Security confirmation
|
(a) |
any Security created by it under
the Finance Documents extends to the obligations of the relevant Transaction Obligors under the
Amended Facility Agreement and the other Finance Documents;
|
(b) |
the obligations of the relevant
Transaction Obligors under the Amended Facility Agreement are secured by the Security created
under the Finance Documents to which it is a party as Secured Liabilities; and
|
(c) |
the Security
created under the Finance Documents continues in full force and effect on the terms of the
respective Finance Documents; and
|
(d) |
this Security confirmation neither creates nor purports to create a registrable Security.
|
4.4 |
Guarantor confirmation
|
(a) |
its
guarantee and indemnity extends to the obligations of the relevant Obligors under the Finance
Documents as amended and supplemented by this Agreement;
|
(b) |
the obligations of the relevant
Obligors under the Finance Documents as amended and supplemented by this Agreement are guaranteed
under its guarantee and indemnity as Secured Liabilities; and
|
(c) |
its
guarantee and indemnity continues to have full force and effect in accordance with its terms as
so extended.
|
4.5 |
Finance Documents to remain in full force and effect
|
(a) |
in the case
of the Facility Agreement as amended and supplemented pursuant to this Agreement;
|
(b) |
the Facility
Agreement and the applicable provisions of this Agreement will be read and construed as one
document; and
|
(c) |
except to the extent expressly
waived by the amendments effected by this Agreement, no waiver is given by this Agreement and the
Finance Parties expressly reserve all their rights and remedies in respect of any breach of, or default (however described) under the Finance Documents.
|
6 |
6.1 |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
6.2 |
The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement)
(a “Dispute”).
|
6.3 |
The Transaction Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Transaction Obligor will argue to the contrary.
|
6.4 |
To the extent allowed by law, this Paragraph 6 (Governing Law and Jurisdiction) is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of
jurisdictions.
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SIGNED by | ) |
|
duly authorised for and on behalf of | ) |
|
HAMBURG COMMERCIAL BANK AG | ) |
|
acting for and on behalf of itself and each
|
) |
|
other Finance Party in the presence of: | ) |
BORROWERS
|
||
SIGNED by Xxxxxxx Xxxxxxx Xxxxxxxxx (Attorney-in-fact) | ) |
/s/ Myrsini Xxxxxxx Xxxxxxxxx |
duly authorised for and on behalf of | ) |
|
LIONO SHIPPING CO. |
) |
|
in the presence of: Xxxxxxxxx Xxxx | ) |
/s/ Xxxxxxxxx Xxxx |
SIGNED by Xxxxxxx Xxxxxxx Xxxxxxxxx (Attorney-in-fact) | ) | /s/ Myrsini Xxxxxxx Xxxxxxxxx |
duly authorised for and on behalf of | ) | |
SNOOPY SHIPPING CO. |
) | |
in the presence of: Xxxxxxxxx Xxxx |
) | /s/ Xxxxxxxxx Xxxx |
SIGNED by Xxxxxxx Xxxxxxx Xxxxxxxxx (Attorney-in fact) | ) |
/s/ Myrsini Xxxxxxx Xxxxxxxxx |
duly authorised for and on behalf of | ) |
|
CINDERELLA SHIPPING CO.
|
) |
|
in the presence of: Xxxxxxxxx Xxxx | ) |
/s/ Xxxxxxxxx Xxxx |
SIGNED by Xxxxxxx Xxxxxxx Xxxxxxxxx (Attorney-in-fact) | ) |
/s/ Myrsini Xxxxxxx Xxxxxxxxx |
duly authorised for and on behalf of | ) |
|
LUFFY SHIPPING CO.
|
) |
|
in the presence of: Xxxxxxxxx Xxxx | ) |
/s/ Xxxxxxxxx Xxxx |
GUARANTOR | ||
SIGNED by Xxxxxxx Xxxxxxx Xxxxxxxxx (Attorney-in-fact) | ) |
/s/ Myrsini Xxxxxxx Xxxxxxxxx |
duly authorised for and on behalf of | ) |
|
) |
||
in the presence of: Xxxxxxxxx Xxxx | ) |
/s/ Xxxxxxxxx Xxxx |
MANAGER | ||
SIGNED by Xxxxxxx Xxxxxxx Xxxxxxxxx (Attorney-in-fact) | ) |
/s/ Myrsini Xxxxxxx Xxxxxxxxx |
duly authorised for and on behalf of | ) |
|
PAVIMAR S.A. | ) |
|
in the presence of: Xxxxxxxxx Xxxx | ) |
/s/ Xxxxxxxxx Xxxx |
SIGNED by Xxxxxxx Xxxxxxx Xxxxxxxxx (Attorney-in-fact) | ) |
/s/ Myrsini Xxxxxxx Xxxxxxxxx |
duly authorised for and on behalf of | ) |
|
CASTOR SHIPS S.A. | ) |
|
in the presence of: Xxxxxxxxx Xxxx | ) |
/s/ Xxxxxxxxx Xxxx |
1
|
RATE SWITCH
|
1.1 |
Switch to Forward Reference Rate |
(a) |
use of the Forward Reference Rate will replace the use of LIBOR for the calculation of interest for any Loan or any part of the Loan; and |
(b) | any Loan or any part of the Loan or Unpaid Sum shall be a “Forward Rate Loan” and Paragraph 2.1 (Calculation of interest
- Forward Rate Loans) below shall apply to such Loan, any such part of the Loan or Unpaid Sum. |
1.2 |
Delayed switch for existing LIBOR Loans |
(a) | any Loan, relevant part of the Loan or Unpaid Sum (as applicable) shall continue to be a LIBOR Loan for that Interest
Period and the clause headed “Calculation of interest” in the Facility Agreement (or, in the absence of such clause, any provision in the Facility Agreement setting out the rate of interest on a LIBOR Loan) shall continue to apply to such
Loan, relevant part of the Loan or Unpaid Sum (as applicable) for that Interest Period; |
(b) |
any provision of the Facility Agreement which is expressed to relate solely to a Forward Rate Loan shall not apply in relation to such Loan, relevant part
of the Loan or Unpaid Sum (as applicable) for that Interest Period; and |
(c) |
on and from the first day of the next Interest Period (if any) for such Loan, relevant part of the Loan or Unpaid Sum (as
applicable): |
(i) | such Loan, relevant part of the Loan or Unpaid Sum (as applicable) shall be a “Forward Rate Loan”; and |
(ii) | Paragraph 2.1 (Calculation of interest - Forward Rate Loans) below shall apply to it. |
1.3 |
Fallback switch to Compounded Reference Rate |
(a) | use of Compounded Reference Rate will replace the use of the Forward Reference Rate or the use of LIBOR, AS
APPLICABLE, for the calculation of interest for any part of the Loan; and |
(b) |
any Loan or
any part of the Loan or Unpaid Sum shall be a “Compounded Rate Loan and Paragraph 2.2 (Calculation of interest - Compounded Rate Loans) below shall apply to such Loan, any such part of
the Loan or Unpaid Sum.
|
1.4 |
Delayed fallback for existing Forward Rate Loans and LIBOR Loans
|
(a) |
any Loan,
relevant part of the Loan or Unpaid Sum (as applicable) shall continue to be a Forward Rate Loan
or LIBOR Loan, as applicable, for that Interest Period and paragraph 2.1 (Calculation of interest-Forward Rate Loans) below in the case of a Forward Rate Loan, and in the case of LIBOR Loan, the clause headed “Calculation of interest” in the Facility Agreement (or, in the absence of such clause, any provision in the Facility Agreement setting out the rate of interest on such Forward Rate Loan or LIBOR Loan) shall
continue to apply to such Loan, relevant part of the Loan or Unpaid Sum (as applicable) for that Interest Period;
|
(b) |
any
provision of the Facility Agreement which is expressed to relate solely to a Compounded Rate Loan
shall not apply in relation to such Loan, relevant part of the Loan or Unpaid Sum (as applicable) for that Interest Period; and
|
(c) |
on and from
the first day of the next Interest Period (if any) for such Loan, relevant part of the Loan or
Unpaid Sum (as applicable):
|
(i) |
such Loan,
relevant part of the Loan or Unpaid Sum (as applicable) shall be a “Compounded Rate Loan”; and
|
(ii) |
Paragraph 2.2 (Calculation of interest - Compounded Rate Loans) below shall apply to it.
|
1.5 |
Notifications:
|
(a) |
Following the occurrence of a Fallback Trigger Event, the Agent shall:
|
(i) |
promptly
upon becoming aware of the occurrence of that Fallback Trigger Event, notify the Borrowers and
the Lenders of that occurrence; and
|
(ii) |
promptly upon becoming aware of or determining the date of
the Fallback Switch Date applicable to that Fallback Trigger Event, notify the Borrowers and the Lenders of that date.
|
(b) |
The Agent shall, promptly upon becoming
aware of the occurrence of the Fallback Switch Date, notify the Borrowers and the Lenders of that occurrence.
|
(c) |
If any Lender considers, in its
reasonable discretion, that it is or will be unable to charge or accept interest in respect of
Loans based on the Forward Reference Rate owing to regulatory restrictions applicable to it, it shall notify the Agent promptly.
|
2
|
2.1 |
Calculation of
interest - Forward Rate Loans
|
(a) |
Margin; and
|
(b) |
Forward Reference Rate.
|
2.2 |
Calculation of
interest - Compounded Rate Loans
|
(a) |
The rate of
interest on each Compounded Rate Loan for any day during an Interest Period is the percentage
rate per annum which is the aggregate of the applicable:
|
(i) |
Margin; and
|
(ii) |
Compounded Reference Rate for that day.
|
(b) |
If any day during an Interest
Period for a Compounded Rate Loan is not a RFR Banking Day, the rate of interest on that
Compounded Rate Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day.
|
2.3 |
Payment of interest
|
2.4 |
Notifications
|
(a) |
The Agent
shall promptly notify the relevant Lenders and the Borrowers of the determination of a rate of
interest relating to a Forward Rate Loan.
|
(b) |
The Agent
shall promptly upon a Compounded Rate Interest Payment being determinable, notify:
|
(i) |
the Borrowers of that Compounded Rate Interest Payment;
|
(ii) |
each
relevant Lender of the proportion of that Compounded Rate Interest Payment which relates to that
Xxxxxx’s participation in the relevant Compounded Rate Loan; and
|
(iii) |
the relevant Lenders and the Borrowers of, to the extent it
is then determinable, the Compounded Market Disruption Rate (if any) relating to the relevant Compounded Rate Loan.
|
(c) |
The Agent
shall promptly notify the relevant Lenders and the Borrowers of the determination of a rate of
interest relating to a Compounded Rate Loan to which Paragraph 4.4 (Cost of funds) below applies.
|
(d)
|
This Paragraph 2.4 (Notifications) shall not require the Agent to make any notification to any Party on a day which is not a Business Day.
|
3 |
3.1 |
Selection of Interest Periods
|
(a) |
Each
Interest Period for any Forward Rate Loan and for any Compounded Rate Loan shall be three Months.
|
(b) |
Sub-paragraph (a) above is
subject to any provision in the Facility Agreement allowing the Borrowers or the Agent (acting on
the instructions of the Lenders) to shorten an Interest Period for any Loan or any part of the Loan.
|
(c) |
Notwithstanding any other provision of the Facility Agreement, no LIBOR Loan may have an Interest Period of one week or two Months.
|
3.2 |
Non-Business Days
|
(a) |
other than where sub-paragraph
(b) below applies, if an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not); and
|
(b) |
if there are rules specified as
“Business Day Conventions” in the Benchmark Terms, those rules shall apply to each Interest
Period for that Compounded Rate Loan.
|
4 |
CHANGES TO THE CALCULATION OF INTEREST
|
4.1 |
Unavailability of Term SOFR for Forward Rate Loan
|
(a) |
Interpolated
Term SOFR: If no Term SOFR is available for the Interest Period of a Forward Rate Loan, the applicable Forward Reference Rate shall be the applicable Interpolated Term SOFR for a period equal in length to the Interest Period of that Forward Rate Loan.
|
(b) |
Historic Term
SOFR: If paragraph (a) above applies but the applicable Interpolated Term SOFR is not available for the Interest Period of the relevant Forward Rate Loan, the Forward Reference Rate for such Interest Period shall be the Historic Term SOFR for that Forward Rate Loan.
|
(c) |
Interpolated Historic
Term SOFR: If paragraph (b) above applies but the Historic Term SOFR is not available for the Interest Period of the relevant Forward Rate Loan, the applicable Forward Reference Rate shall be the Interpolated Historic Term SOFR for a period equal in length to the Interest Period of that Forward Rate Loan.
|
(d) |
Cost of funds:
If paragraph (c) above applies but no Interpolated Historic Term SOFR is available for the Interest Period of the relevant Forward Rate Loan there shall be no Forward Reference Rate for that Forward Rate Loan and Paragraph 4.4 (Cost of funds) below shall apply to
that Forward Rate Loan for that Interest Period.
|
4.2
|
Interest calculation if no RFR or Central Bank Rate - Compounded Rate Loans
|
(a) |
there is no applicable RFR or
Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate
for an RFR Banking Day during an Interest Period for a Compounded Rate Loan; and
|
(b) |
“Cost of funds will apply as a fallback” is specified in the Benchmark Terms,
|
4.3 |
Market disruption
|
(a) |
In the case
of a Forward Rate Loan, if before close of business in London on the SOFR Quotation Day for the
relevant Interest Period, the Agent receives a notification from a Lender or Lenders (whose participation in that Forward Rate Loan exceeds 25 per cent. of that Forward Rate Loan) that its cost of funds relating to its participation in that Forward Rate Loan would be in excess of the Forward Market Disruption Rate, then
Paragraph 4.4 (Cost of funds) shall apply to that Forward
Rate Loan for the relevant Interest Period.
|
(b) |
In the case of a Compounded Rate Loan, if:
|
(i) |
a Compounded Market Disruption Rate is specified in the Benchmark Terms; and
|
(ii) |
before the Reporting Time for
that Compounded Rate Loan, the Agent receives a notification from a Lender or Lenders (whose participation in that Compounded Rate Loan exceeds 25 per cent. of that Compounded Rate Loan) that its cost of funds relating to its participation in that Compounded Rate Loan would be in excess of that Compounded Market Disruption Rate,
|
4.4 |
Cost of funds
|
(a) |
If this
Paragraph 4.4 (Cost of funds) applies to a Forward Rate Loan for an Interest Period, Paragraph 2.1 (Calculation of interest - Forward Rate Loans) above shall not apply to that Forward Rate Loan for
that Interest Period and the rate of interest on each Lender’s share of the Loan for that Interest Period shall be the percentage rate per annum which is the sum of:
|
(i) |
the Margin; and
|
(ii) |
the rate notified to the Agent by
that Lender within three Business Days of the first day of that Interest Period (or, if earlier,
on the date falling five Business Days before the date on which interest is due to be paid in respect of that Interest Period) to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Forward Rate Loan.
|
(b) |
If this
Paragraph 4.4 (Cost of funds) applies to a Compounded Rate Loan for an Interest Period, Paragraph 2.2 (Calculation of interest - Compounded Rate Loans) above shall not apply to that Compounded Rate Loan for that Interest Period and the rate of interest on each Lender’s share of the Loan for that Interest Period shall be the percentage rate per annum
which is the sum of:
|
(i) |
the Margin; and
|
(ii) |
the rate notified to the Agent by
that Xxxxxx as soon as practicable and in any event by the Reporting Time for that Compounded
Rate Loan to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Compounded
Rate Loan.
|
(c) |
If this Paragraph 4.4 (Cost of funds) applies and the Agent or the Borrowers so require, the Agent
and the Borrowers shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.
|
(d) |
Subject to Paragraph 7.1 (Changes to reference rates), any substitute or alternative basis agreed pursuant to paragraph (c) above shall, with the prior consent of all the Lenders and the Borrowers, be binding on all Parties.
|
(e) |
If paragraph (f) below does not apply and any rate notified to the Agent under sub-paragraph (ii) of paragraph (a) or sub paragraph (ii) of paragraph (b) above, as applicable, is less than zero, the relevant rate shall be deemed to be zero.
|
(f) |
If this
Paragraph 4.4 (Cost of funds) applies pursuant to Paragraph 4.3 (Market disruption) and
|
(i) |
in relation to a Forward Rate Loan:
|
(A) |
a Lender’s
Funding Rate is less than the relevant Forward Market Disruption Rate; or
|
(B) |
a Lender
does not notify a rate to the Agent by the time specified in sub-paragraph (ii) of paragraph (a)
above,
|
(ii) |
in relation to a Compounded Rate Loan
|
(A) |
a Lender’s
Funding Rate is less than the relevant Compounded Market Disruption Rate; or
|
(B) |
a Lender
does not notify a rate to the Agent by the time specified in sub-paragraph (ii) of paragraph (b)
above,
|
(g)
|
If this Paragraph 4.4 (Cost of funds) applies, the Agent shall, as soon as practicable, notify the Borrowers.
|
4.5 |
5 |
5.1 |
Voluntary prepayment
|
6 |
6.1 |
Amendment costs
|
(a) |
an Obligor requests an amendment, waiver or consent under any Finance Document; or
|
(b) |
an amendment is required as a
result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement,
|
6.2 |
Published Rate transition costs
|
(a) |
the negotiation or entry into of any Benchmark Terms Supplement or Compounding Methodology Supplement; or
|
(b) |
any amendment, waiver or consent relating to:
|
(i) |
the
transition to the Compounded Reference Rate;
|
(ii) |
any Benchmark Terms Supplement or Compounding Methodology Supplement; or
|
(iii) |
any change arising as a result of an amendment required pursuant to any of Paragraph 4.4 (Cost of funds) or Paragraph 7.1 (Changes to reference rates), including, without limitation, any costs relating to
amendments to the Finance Documents and/or any registration requirements.
|
7 |
7.1 |
Changes to Reference Rates
|
(a) |
If a
Published Rate Replacement Event has occurred in relation to a Published Rate, the Agent (acting
on the instructions of all Lenders) shall be entitled to:
|
(i) |
replace that
Published Rate with a Replacement Reference Rate;
|
(ii) |
adjust the
pricing on the Replacement Reference Rate by the amendment of the Margin or otherwise, in each
case at its discretion, to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method
for calculating any adjustment has been formally designated, nominated or recommended by the Relevant
Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation); and
|
(iii) |
amend this Agreement for the purpose of any of:
|
(A) |
providing for the use of a Replacement Reference Rate in place of that Published Rate;
|
(B) |
aligning any
provision of any Finance Document to the use of that Replacement Reference Rate;
|
(C) |
enabling that Replacement
Reference Rate to be used for the calculation of interest under this Agreement (including,
without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this
Agreement);
|
(D) |
implementing
market conventions applicable to that Replacement Reference Rate;
|
(E) |
providing
for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate,
or
|
(F) |
adjusting the pricing in accordance with paragraph (ii) above.
|
(b) |
The Agent shall promptly notify
the Borrowers and each Finance Party of any replacement of a Published Rate, any adjustment of
pricing and any amendment of this Agreement made pursuant to paragraph (a) above, which shall take effect immediately as from (and including) the date specified in such notification.
|
(c) |
If required by the Agent (acting
on the instructions of all Lenders), the Borrowers shall (and shall procure that each other
Security Party shall) enter into such supplemental, replacement or other agreement in relation to any Finance Document as the Agent may specify to extend the effect of any of the amendments referred to in paragraph (a) above to such Finance Document.
|
(d)
|
An amendment or waiver that relates to, or has the effect of, aligning the means of calculation of interest on a Loan under this Agreement to any recommendation of a Relevant Nominating Body which:
|
(i) |
relates to
the use of the RFR on a compounded basis in the international or any relevant domestic syndicated
loan markets; and
|
(ii) |
is issued on or after the date of this Agreement,
|
7.2 |
Deemed consent
|
(a) |
the replacement of the Published
Rate with a Replacement Reference Rate in accordance with sub-paragraph (a)(i) of Paragraph 7.1 (Changes to reference rates) (and the designation of such benchmark as
permitted under sub-paragraphs (b) and (c) of the definition of “Replacement Reference Rate”);
|
(b) |
the
adjustment of pricing in accordance with sub-paragraph (a)(ii) of Paragraph 7.1 (Changes to
reference rates);
|
(c) |
any amendment of any Finance
Document as contemplated in sub-paragraph (a)(iii) of Paragraph 7.1 (Changes to reference rates); and
|
(d) |
any other amendment, variation,
waiver, suspension or limit requested by the Borrowers or any Security Party which requires the
approval of all Lenders or the Majority Lenders (as the case may be),
|
8 |
8.1 |
Day count convention and interest calculation
|
(a) |
Any interest, commission or fee
accruing under a Finance Document in respect of a Forward Rate Loan or a Compounded Rate Loan
will accrue from day to day and the amount of any such interest, commission or fee is calculated:
|
(i) |
on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market
differs, in accordance with that market practice; and
|
(ii) |
in case of a Compounded Rate
Loan, subject to sub-paragraph (b) below, without rounding.
|
(b) |
The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document in respect of a Compounded Rate Loan shall be rounded to 2 decimal
places.
|
9 |
9.1 |
Any Benchmark Terms Supplement and any Compounding Methodology Supplement shall be a Finance Document.
|
9.2 |
After the Rate Switch Date, any reference in the Amended Facility Agreement to the London interbank market should be deemed to be to the Relevant Market.
|
1 |
Definitions
|
|
(a) |
has, if the
Facility Agreement contains a definition of “Agent” or “Facility Agent” the meaning given to that
term in that definition (as applicable); or
|
(b) |
if the
Facility Agreement does not contain a definition of “Agent” or “Facility Agent”, means Hamburg
Commercial Bank AG acting as agent on behalf of the Finance Parties.
|
(a) |
is agreed in
writing by the Borrowers and the Agent (in its own capacity) and the Agent (acting on the
instructions of the Lenders);
|
(b) |
specifies
the relevant terms which are expressed in this Agreement to be determined by reference to
Benchmark Terms; and
|
(c) |
has been made available to the Borrowers and each Finance Party.
|
(a) |
in respect of a Forward Rate Loan, the amount (if any) by which:
|
(i) |
the interest
which a Lender should have received for the period from the date of receipt of all or any part of
its participation in the Forward Rate Loan to the last day of the current Interest Period in respect of the Forward Rate Loan, had the
principal amount of the Forward Rate Loan received been paid on the last day of that Interest Period;
|
(ii) |
the amount
which that Xxxxxx would be able to obtain by placing an amount equal to the principal amount or
Unpaid Sum received by it in relation to that Forward Rate Loan on deposit with a leading bank for a period starting on the Business
Day following receipt or recovery and ending on the last day of the current Interest Period; and
|
(b) |
in respect
of any Compounded Rate Loan, any amount specified as such in the Benchmark Terms.
|
(a)
|
any day falling within the definition of “Business Day” of the Facility
Agreement; and
|
(b) |
in addition, in relation to:
|
(i) |
any date for
payment or purchase of dollars relating to a Forward Rate Loan or a Compounded Rate Loan; or
|
(ii) |
the determination of the first
day or the last day of an Interest Period for a Forward Rate Loan or a Compounded Rate Loan, or
otherwise in relation to the determination of the length of or rate for such an Interest Period,
|
(a) |
is, or is scheduled to become, payable under any Finance Document; and
|
(b) |
relates to a Compounded Rate Loan.
|
(a) |
is agreed in
writing by the Borrowers and the Agent (in its own capacity) and the Agent (acting on the
instructions of the Lenders);
|
(b) |
specifies a calculation methodology for that rate; and
|
(c) |
has been made available to the
Borrowers and each Finance Party.
|
(a) |
in the case
of an occurrence of a Fallback Trigger Event described in sub-paragraph (i) of paragraph (a) of
the definition of Fallback Trigger Event, the date on which Term SOFR ceases to be published or otherwise becomes unavailable;
|
(b) |
in the case
of an occurrence of a Fallback Trigger Event described in sub-paragraph (ii), (iii) or (iv) of paragraph (a) of the definition of Fallback Trigger Event, the date on which Term SOFR for the relevant Quoted SOFR Tenor ceases to
be published or otherwise becomes unavailable; and
|
(c) |
in the case
of an occurrence of a Fallback Trigger Event described in paragraph (b) of the definition of
Fallback Trigger Event, the date specified by the Agent in the notice served by the Agent to the Borrowers and the Lenders pursuant to sub-paragraph (a)(ii) of Paragraph 1.5 (Notifications) of Part A (Risk-Free Rate Operative Provisions) of this Schedule as the date on
which use of the Compounded Reference Rate will replace the Forward Reference Rate in respect of any Interest Period starting on or after such date.
|
(A) |
the
administrator of Term SOFR or its supervisor publicly announces that such administrator is
insolvent; or
|
(B) |
information is published in any
order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of Term SOFR is insolvent,
|
(ii) |
the
administrator of Term SOFR publicly announces that it has ceased or will cease, to provide Term
SOFR for any Quoted SOFR Tenor permanently or indefinitely and, at that time, there is no successor administrator to continue to
provide Term SOFR for that Quoted SOFR Tenor;
|
(iii) |
the supervisor of the
administrator of Term SOFR publicly announces that Term SOFR has been or will be permanently or
indefinitely discontinued for any Quoted SOFR Tenor; or
|
(iv)
|
the administrator of Term SOFR or its supervisor publicly announces that the Term SOFR for any Quoted SOFR Tenor may no longer be used; and
|
(b) |
any Lender has given notice to
the Agent that it is or will be unable to charge or accept interest in respect of Loans based on
the Forward Reference Rate owing to regulatory restrictions applicable to it.
|
(i) |
if the
Facility Agreement contains a definition of “Finance Document”, any document falling within that
definition; or
|
(ii) |
if the Facility Agreement does not contain a definition of “Finance Document”:
|
(A) |
the Facility Agreement;
|
(B) |
any mandate
letter or fee letter entered into in relation to the Facility Agreement;
|
(C) |
any document
under which any guarantee, Security or other assurance against loss is provided in relation to
amounts owing under the Facility Agreement or any other Finance Document;
|
(D) |
any document
under which any Obligor becomes a party to the Facility Agreement or ceases to be a party to the
Facility Agreement;
|
(E) |
any master
agreement, confirmation, schedule or other agreement entered into by an Obligor for the purpose
of hedging interest payable under the Facility Agreement;
|
(F) |
any document
expressing any intercreditor arrangement, priority arrangement in relation to Security or any
similar agreement between the Security Agent and any creditors of an Obligor;
|
(G) |
this Agreement; and
|
(H) |
any other
document designated as a “Finance Document” by the Agent or the Security Agent and the
Borrowers;
|
(b) |
any Benchmark Terms Supplement; and
|
(c) |
any Compounding Methodology Supplement.
|
(a) |
has, if the
Facility Agreement contains a definition of “Finance Party”, the meaning given to that term in
that definition (as applicable); or
|
(b) |
if the
Facility Agreement does not contain a definition of “Finance Party”, means any person on whose
behalf Hamburg Commercial Bank AG acts as agent under the terms of the Facility Agreement.
|
(a) |
the
applicable Term SOFR as of the SOFR Quotation Day for Dollars and for a period equal in length to
the Interest Period of that Forward Rate Loan; or
|
(b) |
as otherwise
determined pursuant to Clause 4.1 (Unavailability of Term SOFR for Forward Rate Loan) of Part A {Risk-Free Rate Operative Provisions) of this Schedule,
|
(a) |
has, if the
Facility Agreement contains a definition of “Interest Period”, the meaning given to it in that
definition; or
|
(b) |
if the
Facility Agreement does not contain a definition of “Interest Period”, means any period by
reference to which interest or other payments in respect of any Loan, any part of the Loan or Unpaid Sum are calculated.
|
(a) |
either:
|
(i) |
the most recent applicable Term
SOFR (as of a day which is not more than three Additional Business Days before the SOFR Quotation
Day) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Forward Rate Loan; or
|
(ii) |
if no such Term SOFR is available
for a period which is less than the Interest Period of that Forward Rate Loan, the most recent
RFR for a day which is no more than five Additional Business Days (and no less than two Additional Business Days) before the SOFR
Quotation Day; and
|
(b) |
the applicable Term SOFR (as of a
day which is not more than three Additional Business Days before the SOFR Quotation Day) for the
shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Loan.
|
(a)
|
either:
|
(i) |
the
applicable Term SOFR (as of the SOFR Quotation Day) for the longest period (for which Term SOFR
is available) which is less than the Interest Period of that Forward Rate Loan; or
|
(ii) |
if no such Term SOFR is available for a period which is less than the Interest Period of that Forward Rate Loan, the RFR for the day which is two Additional Business Days before the SOFR Quotation Day; and
|
(b)
|
applicable Term SOFR (as of the SOFR Quotation Day) for the shortest period (for which Term SOFR is available) which exceeds the relevant Interest Period of that Forward Rate Loan.
|
(a) |
if the
Facility Agreement contains a definition of “Lender” or “Bank” the meaning given to that term in
that definition (as applicable); or
|
(b) |
if the Facility Agreement does not
contain a definition of “Lender” or “Bank”, any person who has participated in a Loan.
|
(a) |
has, if the
Facility Agreement contains a definition of “Loan”, the meaning given to it in that definition;
or
|
(b) |
if the
Facility Agreement does not contain a definition of “Loan”, means a loan made or to be made
under the Facility Agreement or the principal amount outstanding for the time being of that loan.
|
(a) |
has, if the
Facility Agreement contains a definition of “Margin”, the meaning given to it in that
definition; or
|
(b) |
if the
Facility Agreement does not contain a definition of “Margin”, means any margin, spread, or any
other amount which, prior to the Rate Switch Date, was added to LIBOR to calculate any interest or other amount under the Facility Agreement.
|
(a) |
other than where paragraph (b) below applies:
|
(i) |
(subject to sub-paragraph (a)(ii) and (iii) below)
if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if
there is not, on the immediately preceding Business Day;
|
(ii) |
if there is no numerically
corresponding day in the calendar month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
|
(iii) |
if an Interest Period begins on
the last Business Day of a calendar month, that Interest Period shall end on the last Business
Day in the calendar month in which that Interest Period is to end; and
|
(b) |
in relation
to an Interest Period for a Compounded Rate Loan (or any other period for the accrual of
commission or fees for such Loan) for which there are rules specified as “Business Day Conventions” in the Benchmark Terms, those rules shall apply.
|
(a) |
if the
Facility Agreement contains a definition of “Obligor”, any person falling within that definition;
or
|
(b) |
if the
Facility Agreement does not contain a definition of “Obligor”, the Borrowers and the Guarantor.
|
(a) |
has, if the
Facility Agreement contains a definition of “part of the Loan”, the meaning given to it in that
definition; or
|
(b) |
if the
Facility Agreement does not contain a definition of “part of the Loan”, means an advance, a
tranche or any part of the Loan, as the context may require.
|
(a) |
the RFR; or
|
(b) |
the Term SOFR for any Quoted SOFR Tenor.
|
(a) |
the
methodology, formula or other means of determining that Published Rate has, in the opinion of the
Lenders, materially changed;
|
(i) |
the
administrator of that Published Rate or its supervisor publicly announces that such administrator
is insolvent; or
|
(ii) |
information is published in any
order, decree, notice, petition or filing, however described, of or filed with a court, tribunal,
exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the
administrator of that Published Rate is insolvent,
|
(c) |
the administrator of that
Published Rate publicly announces that it has ceased or will cease, to provide that Published
Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Published Rate;
|
(d) |
the
supervisor of the administrator of that Published Rate publicly announces that such Published
Rate has been or will be permanently or indefinitely discontinued; or
|
(e) |
the
administrator of that Published Rate or its supervisor publicly announces that such Published
Rate may no longer be used; or
|
(f) |
the administrator of the
Published Rate(or the administrator of an interest rate which is a constituent element of that
Published Rate) determines that the Published Rate should be calculated in accordance with its reduced submissions or other
contingency or fallback policies or arrangements and either:
|
(i) |
the
circumstance(s) or event(s) leading to such determination are not (in the opinion of the Lenders)
temporary; or
|
(ii) |
that
Published Rate is calculated in accordance with any such policy or arrangement for a period which
is no less than 10 Additional Business Days; or
|
(iii) |
in the opinion of the Lenders and
the Borrowers, that Published Rate is otherwise no longer appropriate for the purposes of
calculating interest under this Agreement.
|
(a) |
formally
designated, nominated or recommended as the replacement for a Published Rate by:
|
(i) |
the
administrator of that Published Rate (provided that the market or economic reality that such
reference rate measures is the same as that measured by that Published Rate); or
|
(ii) |
any Relevant Nominating Body,
|
(b) |
in the
reasonable opinion of the Lenders, generally accepted in the international or any relevant
domestic syndicated loan markets as the appropriate successor to a Published Rate; or
|
(c) |
in the
reasonable opinion of the Lenders, an appropriate successor or alternative to a Published Rate.
|
(a) |
has, if the
Finance Documents contain a definition of “Secured Liabilities” or “Secured Obligations”, the
meaning given to that term in that definition (as applicable); or
|
(b) |
if the Finance Documents do not
contain a definition of “Secured Liabilities” or “Secured Obligations”, means all present and
future obligations and liabilities (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever)
of the security providers or the Transaction Obligors (as the case may be) to the Finance Parties under or in connection with the Finance Documents.
|
(a) |
has, if the
Facility Agreement contains a definition of “Security” or “Security Interest”, the meaning given
to that term in that definition (as applicable); or
|
(b) |
if the Facility Agreement does
not contain a definition of “Security” or “Security Interest”, means any mortgage, charge,
pledge, lien or other security interest (in any jurisdiction) which secures any obligation of any person, or any other agreement or arrangement
having a similar effect.
|
(a) |
has, if the
Facility Agreement contains a definition of “Security Agent” or “Security Trustee”, the meaning
given to that term in that definition (as applicable}; or
|
(b)
|
if the Facility Agreement does not contain a definition of “Security Agent” or “Security Trustee”, means Hamburg Commercial Bank AG acting as security agent on behalf of the Finance Parties.
|
(a) |
has, if the
Facility Agreement contains a definition of “Security Party”, the meaning given to that term in
that definition; or
|
(b)
|
if the Facility Agreement does not
contain a definition of “Security Party”, means any person that has executed any document (whether or not it creates Security) as security for the Secured Liabilities.
|
(a) |
has, if the
Facility Agreement contains a definition of “Unpaid Sum”, the meaning given to it in that
definition; or
|
(b) |
if the
Facility Agreement does not contain a definition of “Unpaid Sum”, means any sum due and payable
but unpaid by an Obligor under the Finance Documents.
|
2 |
(a) |
a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or
other authority or organisation;
|
(b)
|
a provision of law is a reference to that provision as amended or
re-enacted from time to time;
|
(c) |
a Lender’s “cost of funds” in relation to its participation in a Loan or any part of the Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may
reasonably select, an amount equal to the amount of that participation in that Loan or that part of the Loan for a period equal in length to the Interest Period of that Loan or that part
of the Loan;
|
(d) |
a page or screen of an information service displaying a rate shall include:
|
(i) |
any replacement page of that information service which displays that rate; and
|
(ii) |
the appropriate page of such other information service which displays that rate from time to time in place of that information service,
|
(e) |
a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate.
|
(f) |
any Benchmark Terms Supplement overrides anything in:
|
(i) |
Part C (Benchmark Terms) of this Schedule; or
|
(ii) |
any earlier Benchmark Terms Supplement.
|
(g) |
a Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in:
|
(i) |
Part D (Daily Non-Cumulative Compounded RFR Rate) or Part E (Cumulative Compounded RFR Rate) of this Schedule, as the case may be; or
|
(ii) |
any earlier Compounding Methodology Supplement.
|
CURRENCY:
|
|
Dollars.
|
||
|
|
|
|
|
Cost of funds as a fallback
|
|
Cost of funds will apply as a fallback.
|
||
|
|
|
|
|
Definitions |
|
|
|
|
|
|
|
|
|
Additional Business Days:
|
|
An RFR Banking Day.
|
||
|
|
|
|
|
Break Costs:
|
|
Any documented cost or amount which is incurred or suffered by a Lender (as reasonably determined by that Lender) to the extent that it is attributable to a
payment by the Borrowers to the Agent of any amount of principal due or which would have become due under this Agreement prior to the date upon which such amount should have been repaid in accordance with the terms and conditions of this
Agreement.
|
||
|
|
|
|
|
Business Day Conventions (definition of “Month” and Paragraph 3.2 (Non-Business Days)) of Part A
(Risk-Free Rate Operative Provisions) of this Schedule:
|
|
(a) |
If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month
of that period:
|
|
|
|
|
|
|
|
|
|
(i) |
subject to sub-paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there
is one, or if there is not, on the immediately preceding Business Day;
|
|
|
|
|
|
|
|
|
(ii) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
|
|
|
|
|
|
|
|
(iii) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
|
|
(b)
|
If an
Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
|
|
|
|
|
|
|
|
(a)
|
The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York
from time to time; or
|
||
|
|
|
|
|
|
|
(b)
|
if that
target is not a single figure, the arithmetic mean of:
|
|
|
|
|
|
|
|
|
|
(i) |
the upper
bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and
|
|
|
|
|
|
|
|
|
(ii) |
the lower bound of that target range.
|
|
|
|
|
|
|
In
relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the
arithmetic mean (calculated by the Agent or by any other Finance Party which agrees to make the calculation in place of the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available.
|
|||
|
|
|
|
|
In relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Agent or by any other Finance Party which
agrees to make the calculation in place of the Agent) between:
|
||||
(a) |
the RFR for that RFR Banking Day; and | |||
(b) |
the Central Bank Rate
prevailing at close of business on that RFR Banking Day.
|
|||
The percentage
rate per annum which is the Cumulative Compounded RFR Rate for the Interest Period of the relevant Compounded Rate Loan.
|
||||
Daily Rate
|
The “Daily Rate” for any RFR Banking Day is
|
|||
(c) |
the RFR for that RFR Banking Day; or
|
|
|
(d) |
if the RFR is not available for
that RFR Banking Day, the percentage rate per annum which is the aggregate of:
|
|
|
|
|
|
|
|
|
|
(i) |
the Central Bank Rate for that
RFR Banking Day; and
|
|
|
|
|
|
|
|
|
(ii) |
the applicable Central Bank Rate Adjustment; or
|
|
|
|
|
|
|
|
(e) |
if paragraph (d) above applies
but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:
|
|
|
|
|
|
|
|
|
|
(i) |
the most recent Central Bank
Rate for a day which is no more than 5 RFR Banking
Days before that RFR Banking Day; and
|
|
|
|
|
|
|
|
|
(ii) |
the applicable Central Bank Rate Adjustment,
|
|
|
|
|
|
rounded,
in either case, to four decimal places and if, in either case, that rate is less than zero, the
Daily Rate shall be deemed to be zero.
|
||||
Forward Market Disruption Rate:
|
The
percentage rate per annum which is the Forward Reference Rate for the Interest Period of the
relevant Forward Rate Loan.
|
|||
Lookback Period: |
Five RFR
Banking Days.
|
|||
Relevant Market:
|
The market
for overnight cash borrowing collateralised by US Government securities.
|
|||
The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest period. | ||||
Deadline for Lenders to report their cost of funds
in accordance with Paragraph 4.4 (Market Disruption) of
Part A (Risk-Free Rate Operative Provisions) of this Schedule
|
Close of
business in Hamburg on the Reporting Day for the relevant Compounded Rate Loan.
|
|||
Deadline for Lenders to report their cost of funds
in accordance with Paragraph 4.4 (Cost of funds) of Part A
(Risk-Free rate Operative Provisions) of this Schedule
|
Close of
business on the date falling two Business Days after the Reporting Day for the relevant
Compounded Rate Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Compounded Rate Loan).
|
|
The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York
(or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate).
|
|||
|
|
|
|
|
RFR Banking Day:
|
|
Any day other than:
|
||
|
|
|
|
|
|
|
(a) |
a Saturday or Sunday; and
|
|
|
|
|
|
|
|
|
(b) |
a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed
for the entire day for purposes of trading in US Government securities.
|
(UCCDRi – UCCDRi-1) ×
|
dcc
|
ni
|
ACCDR ×
|
tni
|
dcc
|
“tni” means the number of calendar days from, and including, the first day of the Cumulation Period
to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period;
“Cumulation Period” means the period from, and including, the first RFR Banking Day of that Interest Period to,
and including, that Cumulated RFR Banking Day;
“dcc” has the meaning given to that term above; and
the “Annualised Cumulative Compounded Daily Rate” for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to 5 decimal places) calculated as set out below:
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1 |
1.1 |
A copy of the constitutional documents of each Obligor
|
1.2 |
A copy of a resolution of the board of directors of each Obligor:
|
(a) |
approving the terms of, and the
transactions contemplated by, this Agreement and, where appropriate, the Supplementary Mortgage
Documentation and resolving that it executes this Agreement and, where appropriate, the Supplementary Mortgage Documentation;
|
(b) |
authorising
a specified person or persons to execute this Agreement and, where appropriate, the Supplementary
Mortgage Documentation on its behalf; and
|
(c) |
authorising a specified person or
persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or
despatched by it under, or in connection with, this Agreement and, where appropriate, the Supplementary Mortgage Documentation.
|
1.3 |
An original of the power of attorney of any Obligor authorising a specified person or persons to execute this Agreement and, where appropriate, the Supplementary Mortgage
Documentation.
|
1.4 |
A specimen
of the signature of each person authorised by the resolution referred to in paragraph 1.2 above.
|
1.5 |
A copy of all other corporate
documents of each Obligor required to enter into the transactions contemplated by this Agreement and, where appropriate, the Supplementary Mortgage Documentation such as a
resolution signed by all the holders of the issued shares in the respective Obligor approving the terms of such transactions.
|
2 |
2.1 |
A duly executed original of this Agreement.
|
2.2 |
A duly executed original of the
Supplementary Mortgage Documentation together with documentary evidence that the Supplementary Mortgage Documentation has been duly recorded as a valid addendum to the respective existing mortgage in accordance with the laws of the Xxxxxxxx Islands.
|
3 |