Alternate Rate of Interest. Subject to Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan: (a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
Appears in 4 contracts
Samples: Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.)
Alternate Rate of Interest. Subject to Section 2.27In the event, ifand on each occasion, that prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
Eurodollar Borrowing or the determination of the Benchmark LIBO Rate on any day (a) the Administrative Agent determines (which determination or the Deposit Bank, as applicable, shall be conclusive absent manifest error) have determined that adequate and reasonable means do not exist for ascertaining determining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Period or the Benchmark Transition Event shall have occurred at LIBO Rate for such time; or
day or (b) the Administrative Agent or the Deposit Bank, as applicable, is advised by the Required Lenders reasonably and in good faith that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period or the Benchmark LIBO Rate for such day will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing or such Credit-Linked Deposit, as applicable, for such Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, then the Administrative Agent shall or the Deposit Bank, as applicable, shall, as soon as practicable thereafter, give written or fax notice thereof of such determination to the Borrower and the applicable Lenders by telephoneLenders. In the event of any such notice, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies or the Deposit Bank, as applicable, shall have advised the Borrower and the Lenders that the circumstances giving rise to such written or fax notice no longer exist, (i) any request by the Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing, (ii) any Interest Election Request Period election that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing (iii) the Credit-Linked Deposits shall be converted invested so as to or continued as onof earn a return equal to the last day greater of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests Federal Funds Effective Rate or a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowingrate determined by the Deposit Bank in accordance with banking industry rules on interbank compensation. During any period in which a Market Disruption Event is in effect, Borrower may request that Each determination by the Administrative Agent request or the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in Deposit Bank, as applicable, under this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.142.08 shall, absent clearly demonstrable error, be final and conclusive and binding on all parties hereto.
Appears in 3 contracts
Samples: Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.)
Alternate Rate of Interest. Subject to Section 2.27In the event, ifand on each occasion, that on the day two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LIBOR Loan:
, the Bank shall have determined (a) the Administrative Agent determines (which determination shall be conclusive absent manifest errori) that adequate and reasonable means do dollar deposits in the amount of the requested principal amount of such LIBOR Loan are not exist for ascertaining generally available in the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRLondon Interbank Market, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for rate at which such Interest Period dollar deposits are being offered will not adequately and fairly reflect the cost to such Lenders the Bank of making or maintaining their Loans included in such Borrowing for LIBOR Loan during such Interest Period Period, or (each of clauses (aiii) and (b), a “Market Disruption Event”), thenthat reasonable means do not exist for ascertaining the LIBOR, the Administrative Agent shall Bank shall, as soon as practicable thereafter, give written or telex notice thereof of such determination to the Borrower and Borrower. In the applicable Lenders by telephoneevent of any such determination, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing shall no LIBOR Loans will be ineffective and such Borrowing made hereunder (ii) each outstanding LIBOR Loan shall be converted to or continued as onof into a Fluctuating Rate Loan on the last day of the then current Interest Period applicable thereto as an ABR Borrowing and (iiiii) if unless the Borrower notifies the Bank at least two Business Days prior to the date of any proposed borrowing of a LIBOR Loan for which a Notice of Borrowing Request requests a EurocurrencySOFR Borrowinghas previously been given that it elects not to borrow on such date, such Borrowing Loan shall instead be made as an ABR Borrowinga Fluctuating Rate Loan. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm Promptly upon becoming aware that the circumstances giving rise to such notice no longer exist, the Market Disruption Event continue Bank shall use its best efforts to be in effect; provided notify the Borrower that (A) Borrower shall not be permitted its obligation to submit any such request more than once in any 30‑day period make LIBOR Loans and (B) nothing contained in this Section 2.14 or the convert Loans into LIBOR Loans has been reinstated, but its failure to provide confirmation of do so shall impose no liability on the continued effectiveness of such Market Disruption Event Bank. Each determination by the Bank hereunder shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14be conclusive absent manifest error.
Appears in 3 contracts
Samples: Loan Agreement (Integramed America Inc), Loan Agreement (Integramed America Inc), Loan Agreement (Integramed America Inc)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(a) the Administrative Agent determines in good faith (which determination shall be conclusive absent manifest error) that adequate and reasonable means (including, without limitation, by means of an Interpolated Rate) do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Borrowers and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Borrowers and the Lenders that the circumstances giving rise to such notice no longer existexist (which notification shall be given promptly after the Administrative Agent obtains notice from the Required Lenders of the cessation of such circumstances), (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During Notwithstanding the foregoing, if at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) that (1) the circumstances set forth in Section 2.14(a) have arisen and such circumstances are unlikely to be temporary or (2) the circumstances set forth in clause Section 2.14(a) have not arisen but the supervisor for the administrator of the LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Parent Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate). Notwithstanding anything to the contrary in Section 10.02(b), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to confirm that such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances giving rise described in this clause (b), only to the Market Disruption Event continue extent the LIBO Rate for the applicable currency and such Interest Period is not available or published at such time on a current basis), (x) any request for the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurodollar Loan, such Borrowing shall be made as an ABR Loan; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in zero for the purposes of this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Agreement.
Appears in 3 contracts
Samples: Master Amendment (Krispy Kreme, Inc.), Credit Agreement (Krispy Kreme, Inc.), Credit Agreement (Krispy Kreme, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate or the LIBO RateTerm SOFR or Term SOFREURIBO Rate, as applicableapplicable (including because the applicable Screen Rate is not available or published on a current basis), for the applicable currency and such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate, the LIBO Rate or the LIBO RateTerm SOFR or Term SOFREURIBO Rate, as applicable, for the applicable currency and such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for the applicable currency and such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing made by reference to such rate shall be ineffective and (B) if any Borrowing Request requests a Eurocurrency Revolving Borrowing denominated in dollars made by reference to such rate, such Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate or the EURIBO Rate, as applicable, with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders of each Class; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders of each Class have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBO Rate or the EURIBO Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.
(c) In connection with the implementation of a Benchmark Replacement, the Administrative Agent and the Borrower will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.14, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.14.
(e) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR BorrowingEurocurrency Revolving Borrowing denominated in dollars, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
Appears in 3 contracts
Samples: Credit Agreement (Arconic Corp), Credit Agreement (Arconic Inc.), Credit Agreement (Arconic Rolled Products Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; time or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be converted to or continued as onof repaid on the last day of the then current Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in which a Market Disruption Event is in effectElection, Borrower may request that as applicable, the Administrative Agent request and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event or any Early Opt-in Election will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment in connection with a Benchmark Transition Event containing any SOFR-Based Rate, the Lenders shall be entitled to confirm that the circumstances giving rise object only to the Market Disruption Event continue Benchmark Replacement Adjustment contained therein (if any). No replacement of LIBO Rate with a Benchmark Replacement will occur prior to be in effect; provided that the applicable Benchmark Transition Start Date.
(Ac) In connection with the implementation of a Benchmark Replacement, the Administrative Agent and the Borrower shall not be permitted will have the right to submit any such request more than once make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (Biv) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.14 2.14, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect the Administrative Agent’s or Required Lenders’ right other party hereto, except, in each case, as expressly required pursuant to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
(e) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
Appears in 3 contracts
Samples: Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar or CDOR Rate Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) ), that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the CDOR Rate (including because the LIBO RateTerm SOFR Screen Rate or Term SOFRthe CDO Screen Rate, as applicable, is not available or published on a current basis) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, CDOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Company and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and thereafter, but not later than 10:00 a.m. (London time, or in the case of a CDOR Rate Borrowing, New York City time) on the first day of such Interest Period, and, until the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR an affected Eurodollar or CDOR Rate Borrowing shall be ineffective and such ineffective, (B) any affected Eurodollar Borrowing that is requested to be continued shall be converted to or an ABR Borrowing on the last day of the Interest Period applicable thereto, (C) any affected CDOR Rate Borrowing that is requested to be continued as onof shall be converted to a Canadian Prime Rate Borrowing on the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiD) if any Borrowing Request requests an affected Eurodollar or CDOR Rate Borrowing, then, unless the applicable Borrower notifies the Administrative Agent by 2:00 p.m. (London time, or in the case of a EurocurrencySOFR CDOR Rate Borrowing, New York City time) on the date of such Borrowing that it elects not to borrow on such date, such Borrowing shall (1) in the case of a Borrowing denominated in US Dollars, be deemed a request for an ABR Borrowing or (2) in the case of a Borrowing denominated in Canadian Dollars, be deemed a request for a Canadian Prime Rate Borrowing.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” with respect to US Dollars for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” with respect to US Dollars or CAD for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, with respect to a Loan denominated in US Dollars, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.13, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.13.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Adjusted LIBO Rate or the CDOR Rate) and either (a) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (b) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (a) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (b) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, any Borrower may revoke any request for a Borrowing of, conversion to or continuation of affected Eurodollar or CDOR Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, such Borrower will be deemed to have converted (x) any request for a Borrowing of, conversion to or continuation of affected Eurodollar Loans into a request for a Borrowing of or conversion to ABR BorrowingLoans and (y) any request for a Borrowing of, conversion to or continuation of affected CDOR Rate Loans into a request for a Borrowing of or conversion to Canadian Prime Rate Loans. During any period Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, (x) with respect to US Dollars, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in which any determination of ABR and (y) with respect to CAD, the component of the Canadian Prime Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Canadian Prime Rate. Furthermore, if any Eurodollar Loan or CDOR Rate Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Market Disruption Event Benchmark Unavailability Period with respect to the Adjusted LIBO Rate or the CDOR Rate, as applicable, then until such time as the applicable Benchmark Replacement is implemented pursuant to this Section 2.13, (i) in effectthe case of a Eurodollar Loan, Borrower may request that on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower to, and shall not be permitted to submit any such request more than once in any 30‑day period constitute, an ABR Loan and (Bii) nothing contained in this Section 2.14 the case of a CDOR Rate Loan, such Loan shall, on the last day of the Interest Period applicable to such Loan (or the failure to provide confirmation of the continued effectiveness of next succeeding Business Day if such Market Disruption Event day is not a Business Day), such Loan shall in any way affect be converted by the Administrative Agent’s or Required Lenders’ right to provide any additional notices of Agent to, and shall constitute, a Market Disruption Event as provided in this Section 2.14Canadian Prime Rate Loan.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Bath & Body Works, Inc.), Revolving Credit Agreement (Victoria's Secret & Co.), Revolving Credit Agreement (Victoria's Secret & Co.)
Alternate Rate of Interest. Subject to Section 2.27, if, If at least two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBO Rate Borrowing or for a BA Rate Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRBA Rate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRBA Loan Rate for such Interest Period, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Revolving Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall promptly give notice thereof to the Lead Borrower and the applicable Lenders by telephone, telephone or facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Lead Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR LIBO Rate Borrowing or BA Rate Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing, Canadian Base Rate Borrowing or continued Canadian Prime Rate Borrowing, as onof applicable (or, in the case of a pending request for a Borrowing denominated in any Alternate Currency, the Lead Borrower and the Lenders shall establish a mutually acceptable alternative rate) on the last day of the Interest Period applicable thereto as an ABR Borrowing thereto, and (ii) if any Borrowing Request requests a EurocurrencySOFR LIBO Rate Borrowing or BA Rate Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period , Canadian Base Rate Borrowing or Canadian Prime Rate Borrowing, as applicable (or, in which the case of a Market Disruption Event is in effect, Borrower may pending request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once for a Borrowing denominated in any 30‑day period Alternate Currency, the Lead Borrower and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event Lenders shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of establish a Market Disruption Event as provided in this Section 2.14mutually acceptable alternative rate).
Appears in 3 contracts
Samples: Amendment No. 2 (Hillman Solutions Corp.), Credit Agreement (Hillman Companies Inc), Abl Credit Agreement (Hillman Companies Inc)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing of the affected type (including Loans denominated in a particular currency, as applicable) shall be ineffective ineffective, and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as (A) if such Borrowing is denominated in Dollars, an ABR Revolving Borrowing, or (B) if such Borrowing is denominated in any other currency, a Revolving Borrowing bearing interest at such rate as the affected Lenders and the Borrower may agree adequately reflects the costs to such Lenders of making or maintaining their Loans (or, in the absence of such agreement, shall be repaid as of the last day of the current Interest Period applicable thereto), and (ii) if any Borrowing Request requests a EurocurrencySOFR BorrowingEurocurrency Revolving Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing (or such Borrowing shall not be made if the Borrower revokes (and in such circumstances, such Borrowing Request may be revoked notwithstanding any other provision of this Agreement) such Borrowing Request by telephonic notice, confirmed promptly in writing, not later than one Business Day prior to the proposed date of such Borrowing. During ) and (iii) any period request by a Borrower for a Eurocurrency Borrowing denominated in which a Market Disruption Event is in effect, Borrower may request currency other than Dollars shall be ineffective; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice affect only one type of Borrowings (for example, Loans having certain Interest Periods or denominated in a particular currency), then the Market Disruption Event continue to other types of Borrowing shall be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14permitted.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Hewlett Packard Enterprise Co), Credit Agreement (Hp Inc)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such timePeriod (in each case with respect to clause (a), the “Impacted Loans”); or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile telephone or telecopy or transmission or PDF attachment to an email by electronic communication in accordance with Section 9.01 as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Revolving Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto (A) if such Revolving Borrowing is denominated in Dollars, as a Base Rate Borrowing, or (B) if such Revolving Borrowing is denominated in an ABR Alternative Currency, as a Revolving Borrowing bearing interest at such rate as the Administrative Agent and the Borrower may agree adequately reflects the costs to the Lenders of making or maintaining their Loans (or, in the absence of such agreement, such Revolving Borrowing shall be repaid as of the last day of the current Interest Period applicable thereto), (ii) if any Borrowing Request requests a EurocurrencySOFR BorrowingEurocurrency Revolving Borrowing denominated in Dollars, such Borrowing shall be made as a Base Rate Borrowing (or such Revolving Borrowing shall not be made if the Borrower revokes (and, in such circumstances, such Borrowing Request may be revoked notwithstanding any other provision of this Agreement) by telephone, confirmed promptly in writing, not later than one Business Day prior to the proposed date of such Borrowing) and (iii) if any Borrowing Request requests a Eurocurrency Revolving Borrowing in an ABR Borrowing. During any period in which Alternative Currency, such Borrowing shall be made as a Market Disruption Event is in effect, Borrower may request that Revolving Borrowing bearing interest at such rate as the Administrative Agent request and the Borrower may agree adequately reflects the costs to the Lenders of making or maintaining their Loans or, in the absence of such agreement, such Borrowing Request shall be automatically revoked notwithstanding any other provision of this Agreement. Notwithstanding the foregoing, if the Administrative Agent has made the determination described in this section, the Administrative Agent, in consultation with the Borrower and the Required Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this section, (2) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to confirm such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the circumstances giving rise authority of such Lender to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit do any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect foregoing and provides the Administrative Agent and the Borrower written notice thereof. Upon the Administrative Agent’s election to establish an alternative rate of interest pursuant to this paragraph, the Borrower may revoke any pending request for a Borrowing of, conversion to or Required Lenders’ right continuation of Eurocurrency Loans in the affected currency or currencies (to provide the extent of the affected Eurocurrency Rate Loans or Interest Periods) without payment of any additional notices amount specified in Section 2.15, provided that such repayment is effected promptly upon receipt of a Market Disruption Event as provided in this Section 2.14such notice.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Mylan N.V.), Revolving Credit Agreement (Mylan N.V.), Revolving Credit Agreement (Mylan N.V.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If at least two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBO Rate Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate (including because a Screen Rate is not available or the LIBO RateTerm SOFR or Term SOFR, as applicable, published on a current basis) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or for the LIBO RateTerm SOFR or Term SOFR, as applicable, for applicable currency and/or such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give written notice thereof to the Borrower Parent and the applicable Lenders by telephonehand delivery, facsimile or other electronic transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Parent and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR LIBO Rate Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof an ABR Borrowing and the utilization of the LIBO Rate component in determining the Alternate Base Rate shall be suspended on the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR LIBO Rate Borrowing, then such Borrowing shall be made as an ABR Borrowing. During Borrowing and the utilization of the LIBO Rate component in determining the Alternate Base Rate shall be suspended; provided, however, (x) that, in each case, Parent may revoke any period in which a Market Disruption Event Borrowing Request that is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that pending when such notice is received and (y) if the circumstances giving rise to the Market Disruption Event continue to be such notice affect only Borrowings in effect; provided that (A) Borrower certain currencies, then LIBO Rate Borrowings in unaffected currencies shall not be permitted to submit the extent otherwise permitted by this Agreement.
(b) If at any such request more than once time the Administrative Agent determines (which determination shall be conclusive absent manifest error) in any 30‑day period and consultation with Parent that either (Bi) nothing contained the circumstances set forth in clause (a) of this Section 2.14 have arisen and such circumstances are unlikely to be temporary or (ii) the failure to provide confirmation circumstances set forth in clause (a) of this Section 2.14 have not arisen but the supervisor for the administrator of the continued effectiveness LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be used for determining interest rates for loans (in the case of either such Market Disruption Event clause (i) or (ii), an “Alternative Interest Rate Election Event”), the Administrative Agent and Parent shall endeavor to establish an alternate rate of interest to the LIBO Rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that gives due consideration to the then prevailing market convention for determining a rate of interest for leveraged syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest (the “Successor Rate”) and such other related changes to this Agreement as may be applicable, as mutually determined in good faith by the Administrative Agent and Parent (but, for the avoidance of doubt, such related changes shall not include a reduction to the Applicable Rate). Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any way affect further action or consent of any other party to this Agreement. To the extent an alternate rate of interest is adopted as contemplated hereby, the approved rate shall be applied in a manner consistent with prevailing market convention; provided, that, to the extent such prevailing market convention is not administratively feasible for the Administrative Agent’s , such approved rate shall be applied in a manner as otherwise mutually determined in good faith by the Administrative Agent and Parent. Notwithstanding the foregoing, if a Successor Rate has not otherwise been established pursuant to this clause (b), after Parent and the Administrative Agent have reached such a determination, Parent and the Required Lenders may select a different alternate rate as long as it is reasonably practicable for the Administrative Agent to administer such different rate and, upon not less than 15 Business Days’ prior written notice to the Administrative Agent, the Administrative Agent, the Required Lenders and Parent shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or Required Lenders’ right consent of any other party to provide this Agreement. Until an alternate rate of interest shall be determined in accordance with this clause (b), (x) any additional notices request by Parent for a LIBO Rate Borrowing pursuant to Section 2.03 shall be deemed to be a request for an ABR Borrowing, (y) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Market Disruption Event as provided in this Section 2.14LIBO Rate Borrowing shall be ineffective and (z) any affected Borrowing shall be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto.
Appears in 2 contracts
Samples: Credit Agreement (Reynolds Consumer Products Inc.), Credit Agreement (Reynolds Consumer Products Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing denominated in such currency shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing Borrowing, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) or the Borrower notifies the Administrative Agent that (i) the circumstances set forth in Section 2.14(a)(i) have arisen and such circumstances are unlikely to be temporary, (ii) the circumstances set forth in Section 2.14(a)(i) have not arisen but the supervisor for the administrator of the LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be used for determining interest rates for loans or (iii) syndicated loans currently being executed, or that include language similar to that contained in this Section 2.14, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Adjusted LIBO Rate then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin); provided, that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.08, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within three Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to confirm that such amendment. Until an alternate rate of interest shall be determined in accordance with this Section 2.14(b) (but, in the case of the circumstances giving rise described in clause (ii) or clause (iii) above, only to the Market Disruption Event continue to be in effect; provided that extent the LIBO Rate for such Interest Period is not available or published at such time on a current basis), (A) Borrower any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall not be permitted to submit any such request more than once in any 30‑day period ineffective and shall be continued as, or converted into, if applicable, an ABR Borrowing and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of if any Borrowing Request requests a Eurocurrency Borrowing, such Market Disruption Event Borrowing shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event be made as provided in this Section 2.14an ABR Borrowing.
Appears in 2 contracts
Samples: Second Lien Bridge Credit Agreement (Berry Global Group Inc), Second Lien Bridge Credit Agreement
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBOR Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event or Early Opt-In Election shall have occurred at such timetime or for such Interest Period; or
(bii) the Administrative Agent is advised by the Required Lenders (or, in the case of a Eurodollar Loan, the Lender that is required to make such Loan) that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Company and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email telecopy of electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Company and the such Lenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Revolving Credit Loan Borrowing to, or continuation of any Revolving Credit Loan Borrowing as, a Eurodollar Borrowing shall be ineffective, (B) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as a Base Rate Borrowing and (C) any request by the Company for a Eurodollar Borrowing shall be ineffective; provided that (x) if the circumstances giving rise to such notice do not affect all the Lenders, then requests by the Borrower for Eurodollar Borrowings may be made to Lenders that are not affected thereby and (y) if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Company may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Company, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders of each Class; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders of each Class have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBO Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.
(c) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify the Company and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.12.
(e) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that requests the conversion of any applicable Revolving Credit Loan Borrowing to, or continuation of any such Revolving Credit Loan Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and ineffective, (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Revolving Credit Loan Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period Base Rate Borrowing and (Biii) nothing contained in this Section 2.14 or any request by the failure to provide confirmation of the continued effectiveness of such Market Disruption Event Company for a Eurodollar Borrowing shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14be ineffective.
Appears in 2 contracts
Samples: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or;
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period Period; or
(each iii) an Event of clauses (a) Default exists and (b), a “Market Disruption Event”), then, the Administrative Agent or Required Lender elect to suspend the right of the Borrower to obtain Eurodollar Borrowings; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing ineffective, and (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing. During ; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
(b) If any period Lender determines that any Requirement of Law has made it unlawful, or if any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain, fund or continue any Eurodollar Borrowing, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, dollars in which a Market Disruption Event is in effectthe London interbank market, then, on notice thereof by such Lender to the Borrower may request that Representative through the Administrative Agent, any obligations of such Lender to make, maintain, fund or continue Eurodollar Loans or to convert ABR Borrowings to Eurodollar Borrowings will be suspended until such Lender notifies the Administrative Agent request and the Required Lenders to confirm Borrower Representative that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness determination no longer exist. Upon receipt of such Market Disruption Event shall in any way affect notice, the Borrowers will upon demand from such Lender (with a copy to the Administrative Agent’s ), either convert or prepay all Eurodollar Borrowings of such Lender to ABR Borrowings, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such conversion or prepayment, the Borrowers will also pay accrued interest on the amount so converted or prepaid.
(c) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate); provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders’ right Lenders of each Class stating that such Required Lenders object to provide any additional notices such amendment. Until an alternate rate of a Market Disruption Event as provided interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii)(w), clause (ii)(x) or clause (ii)(y) of the first sentence of this Section 2.142.14(b), only to the extent the LIBO Screen Rate for the applicable currency and such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (F45 Training Holdings Inc.), Credit Agreement (F45 Training Holdings Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBOR Borrowing, a EURIBOR Borrowing or a CDOR Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate, the EURIBO Rate or the LIBO RateTerm SOFR or Term SOFRCDO Rate, as applicablethe case may be, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders (or a majority in interest of the Lenders that would make Loans as part of such Borrowing) that the Adjusted LIBO Rate, LIBO Rate, EURIBO Rate or the LIBO RateTerm SOFR or Term SOFRCDO Rate, as applicablethe case may be, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their the Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the applicable Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the applicable Borrower and the applicable Lenders that the circumstances giving rise to such notice no longer exist (it being agreed that the Administrative Agent will so notify the Company promptly after it becomes aware that such circumstances no longer exist), (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR an affected LIBOR Borrowing, EURIBOR Borrowing or CDOR Borrowing, as the case may be, shall be ineffective and such ineffective, (ii) any affected LIBOR Borrowing, EURIBOR Borrowing or CDOR Borrowing that is requested to be continued shall (A) if denominated in US Dollars, be converted to or continued as onof an ABR Borrowing or (B) otherwise, be repaid on the last day of the then current Interest Period applicable thereto as and (iii) any Borrowing Request for an affected LIBOR Borrowing, EURIBOR Borrowing or CDOR Borrowing shall (A) if denominated in US Dollars, be deemed a request for an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and or (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14otherwise, be ineffective.
Appears in 2 contracts
Samples: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If at least two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:Rate Borrowing (other than with respect to the BA Rate):
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; Period; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall promptly give notice thereof to the Lead Borrower and the applicable Lenders by telephone, telephone or facsimile or other electronic transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Lead Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, as a EurocurrencySOFR Eurocurrency Rate Borrowing shall be ineffective and such Borrowing shall (x) if denominated in U.S. Dollars or Canadian Dollars, be converted to or continued as onof an ABR Borrowing on the last day of the Interest Period applicable thereto as an ABR or (y) if denominated in any other currency, be converted into a Daily Rate Borrowing on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Rate Borrowing, such Borrowing shall (x) if denominated in U.S. Dollars or Canadian Dollars, be made as an ABR Borrowing or a Canadian Base Rate Borrowing. During , as applicable or (y) if denominated in any period in which other currency, be made as a Market Disruption Event is in effect, Borrower may request that Daily Rate Borrowing.
(b) If the Administrative Agent request determines (which determination shall be conclusive absent manifest error), or the Lead Borrower or the Required Lenders to confirm notify the Administrative Agent that the Lead Borrower or Required Lenders (as applicable) have determined that:
(i) adequate and reasonable means do not exist for ascertaining CDOR, including because the CDOR Page is not available or published on a current basis for the applicable period and such circumstances giving rise to the Market Disruption Event continue are unlikely to be in effect; provided that temporary;
(Aii) Borrower the administrator of CDOR or a Governmental Authority having jurisdiction has made a public statement identifying a specific date after which the will permanently or indefinitely cease to be made available or permitted to be used for determining the interest rate of loans;
(iii) a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which CDOR shall not no longer be permitted to submit any be used for determining the interest rate of loans (each such request more than once specific date in any 30‑day period clause (ii) above and in this clause (Biii) nothing a “CDOR Scheduled Unavailability Date”);
(iv) syndicated loans currently being executed, or that include language similar to that contained in this Section 2.14 2.14, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace CDOR; then reasonably promptly after such determination by the failure Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Lead Borrower may mutually agree upon a successor rate to provide confirmation CDOR, and the Administrative Agent and the Lead Borrower may amend this Agreement to replace CDOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar Canadian Dollars denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “CDOR Successor Rate”), together with any proposed CDOR Successor Rate conforming changes and any such amendment shall become effective at 5:00 p.m. (Toronto time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Lead Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.
(c) If no CDOR Successor Rate has been determined and the circumstances under Section 2.14(b)(i) above exist or a CDOR Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Lead Borrower and each Lender. Thereafter, the obligation of the continued effectiveness Lenders to make or maintain BA Rate Loans, shall be suspended (to the extent of the affected BA Rate Loans, or applicable periods). Upon receipt of such Market Disruption Event notice, the Lead Borrower may revoke any pending request for an Borrowing of, the conversion of any Borrowing to, or continuation of any Borrowing as a BA Rate Loan (to the extent of the affected BA Rate Loans, or applicable periods) or, failing that, will be deemed to have converted such request into a request for an Canadian Base Rate Borrowing in the amount specified therein.
(d) Notwithstanding anything else herein, any definition of the CDOR Successor Rate (exclusive of any margin) shall provide that in any way affect no event shall such CDOR Successor Rate be less than 0.75% for the Administrative Agent’s purposes of this Agreement. In addition, CDOR shall not be included or Required Lenders’ right to provide any additional notices referenced in the definition of a Market Disruption Event as provided in this Section 2.14Canadian Base Rate.
Appears in 2 contracts
Samples: Credit Agreement (SB/RH Holdings, LLC), Credit Agreement (SB/RH Holdings, LLC)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) Agent, acting in good faith and in its reasonable discretion, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Revolving Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give written notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period Notwithstanding anything contained herein to the contrary, in which a Market Disruption Event is in effect, Borrower may request the event that the Administrative Agent request shall have determined (which determination shall be final and conclusive and binding upon all parties hereto) that there exists, at such time, a broadly accepted market convention for determining a rate of interest for syndicated loans in the United States in lieu of the Adjusted LIBOR Rate and such determination is reasonably acceptable to Borrower, and the Administrative Agent shall have given notice of such determination to each Lender (it being understood that the Administrative Agent shall have no obligation to make such determination and/or to give such notice), then the Administrative Agent and Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 11.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders to confirm stating that the circumstances giving rise Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (but only to the Market Disruption Event continue extent the Adjusted LIBOR Rate for the applicable Interest Period is not available or published at such time on a current basis), (x) no Revolving Loans may be made as, or converted to, Eurodollar Revolving Loans, and (y) any Borrowing Request given by Borrower with respect to Eurodollar Revolving Loans shall be deemed to be in effect; provided that (A) Borrower shall not be permitted to submit any such a request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14for an ABR Borrowing.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBO Rate Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall promptly give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR LIBO Rate Borrowing shall be ineffective and such Borrowing shall be continued as, or converted to, an ABR Borrowing (in the case of any conversion to or continued as onof an ABR Borrowing, on the last day of the Interest Period applicable thereto as an ABR Borrowing thereof), and (ii) if any Borrowing Request requests a EurocurrencySOFR LIBO Rate Borrowing, such Borrowing shall be made as an ABR Borrowing. During Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, if at any period time there ceases to exist a LIBO Rate or other interbank rate in which a the London Market Disruption Event is in effect, Borrower may request that regulated or otherwise overseen or authorized by the ICE Benchmark Administration or U.K. Financial Conduct Authority for interest periods greater than one Business Day or the Administrative Agent request determines in good faith (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.13(i) or (ii) above have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances above have not arisen but the supervisor for the administrator of the LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for fixed periods for syndicated loans in the United States at such time (it being agreed that such rate shall not result in a higher cost of funding than ABR Borrowings), and shall enter into an amendment to the Loan Documents to reflect such alternate rate of interest and such other related changes as may be applicable which are agreed by the Borrower and the Administrative Agent at such time; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Notwithstanding anything to the contrary in the Loan Documents, such amendment shall become effective without any further action or consent of any other party to Loan Documents so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that they object to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14amendment.
Appears in 2 contracts
Samples: Second Lien Credit Agreement, Second Lien Credit Agreement (Post Holdings, Inc.)
Alternate Rate of Interest. (I) Solely for purposes of any Term Loan Facility:
(a) Subject to clauses (b)(i) through (v) of this Section 2.272.12(I), if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Term Lenders that the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Term Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give written notice thereof to the Borrower and the applicable Term Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Term Lenders that the circumstances giving rise to such notice no longer exist, (ix) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof an ABR Borrowing on the last day of the Interest Period applicable thereto as an ABR Borrowing thereto, and (iiy) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise .
(b) Notwithstanding anything to the Market Disruption Event continue contrary herein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.12(I)):
(i) On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of the Eurodollar Rate’s administrator (“IBA”), announced in effect; provided that a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-month Eurodollar Rate tenor settings. On the earlier of (A) Borrower shall not the date that all Available Tenors of the Eurodollar Rate have either permanently or indefinitely ceased to be permitted provided by IBA or have been announced by the FCA pursuant to submit any such request more than once in any 30‑day period public statement or publication of information to be no longer representative and (B) nothing contained the Early Opt-in Effective Date, if the then-current Benchmark is the Eurodollar Rate, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(ii) Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Term Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Term Lenders comprising the Required Term Lenders. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans. During the period referenced in the foregoing sentence, the component of the Alternate Base Rate based upon the Benchmark will not be used in any determination of the Alternate Base Rate.
(iii) In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iv) The Administrative Agent will promptly notify the Borrower and the Term Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14 2.12(I), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.12(I).
(v) At any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including Term SOFR or the failure to provide confirmation of Eurodollar Rate), then the continued effectiveness Administrative Agent may remove any tenor of such Market Disruption Event shall in any way affect Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (B) the Administrative Agent’s or Required Lenders’ right to provide Agent may reinstate any additional notices such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(II) Solely for purposes of a Market Disruption Event as provided in this Section 2.14.any Revolving Facility:
Appears in 2 contracts
Samples: Credit Agreement (DT Midstream, Inc.), Credit Agreement (DT Midstream, Inc.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.273.03, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that that, upon receipt of such notice, (A) the Borrower shall not be permitted may, at its option, revoke any pending Interest Election Request or Borrowing Request for a Borrowing of, conversion to submit any such request more than once in any 30‑day period or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) and (B) nothing contained any outstanding affected Eurodollar Rate Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this Section 2.14 or paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the failure to provide confirmation Reference Time in respect of any setting of the continued then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of such Market Disruption Event shall any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (d) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.03, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.03.
(f) Notwithstanding anything to the contrary herein or in any way affect other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative AgentAgent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s or Required Lenders’ right to provide any additional notices receipt of notice of the commencement of a Market Disruption Event Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as provided applicable, will not be used in this Section 2.14any determination of ABR.
Appears in 2 contracts
Samples: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d) and (e) of this Section 2.272.15, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted LIBO Daily Simple SOFR Rate or the LIBO RateTerm SOFR or Term Daily Simple SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that at any time, the Adjusted LIBO Daily Simple SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist or a Benchmark Replacement is implemented, the component of the Short-Term Funding Rate based upon the Adjusted Daily Simple SOFR Rate will not be used in any determination of the Short-Term Funding Rate and the Applicable Rate shall be increased by 0.10%.
(b) Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Credit Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any Interest Election Request that requests the conversion occurrence of any applicable Borrowing toa Benchmark Transition Event, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if the implementation of any Borrowing Request requests a EurocurrencySOFR BorrowingBenchmark Replacement, such Borrowing shall (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that by the Administrative Agent request or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.15, including any determination with respect to a tenor, rate or adjustment or of the Required Lenders occurrence or non-occurrence of an event, circumstance or date and any decision to confirm that take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.15.
(e) During any Benchmark Unavailability Period, the circumstances giving rise to component of the Market Disruption Event continue to be in effect; provided that (A) Borrower shall Short-Term Funding Rate based upon the then-current Benchmark will not be permitted to submit any such request more than once used in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation determination of the continued effectiveness of such Market Disruption Event Short- Term Funding Rate and the Applicable Rate shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14be increased by 0.10%.
Appears in 2 contracts
Samples: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request ; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the Market Disruption Event continue other Type of Borrowings shall be permitted.
(b) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in effectclause (a)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall (with their mutual consent) enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.15(b), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that (A) Borrower that, if such alternate rate of interest shall not be permitted less than zero, such rate shall be deemed to submit any such request more than once in any 30‑day period and (B) nothing contained in be zero for the purposes of this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Agreement.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (in consultation with and as directed by the Required Lenders and which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Term Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Agent and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Agent and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR SOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing Borrowing, and (ii) if any Borrowing Interest Election Request requests a EurocurrencySOFR SOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) Upon the occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date prior to any period setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in which accordance with clause (b)(1)(i) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Market Disruption Event Benchmark Replacement is determined in effectaccordance with clause (b)(1)(ii) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document.
(c) In connection with the implementation of a Benchmark Replacement, the Required Lenders will have the right, in consultation with the Borrower may request that Agent, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document and written notice of such Benchmark Replacement Conforming Changes shall be provided to the Administrative Agent request (for delivery to all Lenders).
(d) After a Benchmark Replacement Date, the Administrative Agent will promptly notify the Borrower Agent and the Lenders of the following, so long as the Administrative Agent has received the same from the Required Lenders (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that clause (Ae) Borrower shall not be permitted to submit any such request more than once in any 30‑day period below and (Bv) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Required Lenders pursuant to this Section 2.14 2.14, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect the Administrative Agent’s other party to this Agreement or Required Lenders’ right any other Loan Document, except, in each case, as expressly required pursuant to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
(e) At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Required Lenders may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Required Lenders may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Term Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request for a SOFR Loan into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
(g) Furthermore, if any Term Loan is outstanding on the date of the Borrower’s receipt of the notice of the commencement of a Benchmark Unavailability Period with respect to the rate applicable to such Term Loan, then on the last day of the Interest Period applicable to such Term Loan (or the next succeeding Business Day if such day is not a Business Day), such Term Loan shall be converted by the Administrative Agent to, and shall constitute an ABR Loan on such day.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Party City Holdco Inc.), Restructuring Support Agreement (Party City Holdco Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) If fewer than two Reference Banks furnish timely information to the Administrative Agent determines (which determination for determining the Eurodollar Rate for any Eurodollar Rate Advances or the Adjusted CD Rate for any Adjusted CD Rate Advances comprising any requested Borrowing, the Administrative Agent will notify the Banks and the Borrower thereof, and the right of the Borrower to select Advances of such Type for such Borrowing or any subsequent Borrowing shall be conclusive absent manifest errorsuspended until the Administrative Agent shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist, and (i) that adequate any request by the Borrower for a Eurodollar Rate Auction Advance shall be of no force and reasonable means do not exist effect and shall be denied by the Administrative Agent and (ii) unless the Borrower shall withdraw its request for ascertaining such Advance by notice to the Administrative Agent, any request by the Borrower for a Eurodollar Rate Contract Advance or an Adjusted LIBO CD Rate or the LIBO RateTerm SOFR or Term SOFRAdvance, as applicablethe case may be, shall be deemed to be a request for such Interest Periodan Alternate Base Rate Advance; provided that no Benchmark Transition Event shall have occurred at such time; orand
(b) If Banks having more than 50% of the Commitments shall, at least one Business Day before the date of any requested Borrowing, notify the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Eurodollar Rate for any Eurodollar Rate Advances or the LIBO RateTerm SOFR or Term SOFR, as applicable, Adjusted CD Rate for any Adjusted CD Rate Advances comprising such Interest Period Borrowing will not adequately and fairly reflect the cost to such Lenders Banks of making or maintaining funding their Loans included in such Borrowing respective Advances for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), thenBorrowing, the Administrative Agent will notify the Banks and the Borrower thereof, and the right of the Borrower to select Advances of such Type for such Borrowing or any subsequent Borrowing shall give notice thereof to be suspended until the Administrative Agent shall notify the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower and the Lenders Banks that the circumstances giving rise to causing such notice suspension no longer exist, and (i) any Interest Election Request that requests request by the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, Borrower for a EurocurrencySOFR Borrowing Eurodollar Rate Auction Advance shall be ineffective of no force and such Borrowing effect and shall be converted to or continued as onof denied by the last day of the Interest Period applicable thereto as an ABR Borrowing Administrative Agent and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that unless the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted withdraw its request for such Advance by notice to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s , any request by the Borrower for a Eurodollar Rate Contract Advance or Required Lenders’ right an Adjusted CD Rate Advance, as the case may be, shall be deemed to provide any additional notices of be a Market Disruption Event as provided in this Section 2.14request for an Alternate Base Rate Advance.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Union Pacific Corp), Revolving Credit Agreement (Union Pacific Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If at least two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany Borrowing or Term SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate Term SOFR or the LIBO RateTerm SOFR or Term SOFREURIBO Rate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate Term SOFR or the LIBO RateTerm SOFR or Term SOFR, as applicable, EURIBO Rate for the applicable currency and/or such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give written notice thereof to the Borrower Holdings and the applicable Lenders by telephonehand delivery, facsimile or other electronic transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Holdings and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests request by a Borrower for the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Term SOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof a Daily Rate Borrowing and the utilization of the Adjusted Term SOFR component in determining the Alternate Base Rate shall be suspended on the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Term SOFR Borrowing or Eurocurrency Borrowing, as applicable, then such Borrowing shall be made as an ABR Borrowing. During a Daily Rate Borrowing and, in the case of a Borrowing denominated in Dollars, the utilization of the Adjusted Term SOFR component in determining the Alternate Base Rate shall be suspended; provided, however, that (x) in each case, Holdings may revoke any period in which a Market Disruption Event Borrowing Request that is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that pending when such notice is received and (y) if the circumstances giving rise to such notice affect only Borrowings in certain currencies, then the Market Disruption Borrowings in unaffected currencies shall be permitted to the extent otherwise permitted by this Agreement.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event continue or an Early Opt-in Election, as applicable, the Administrative Agent and Holdings may amend this Agreement to replace any Benchmark with a Benchmark Replacement. Any such amendment with respect any Benchmark for Borrowings and Loans denominated in Dollars with (x) a Benchmark Replacement determined in accordance with clause (a) of the definition of “Benchmark Replacement” will be effective without any further action or consent of any other party to this Agreement or any other Loan Document and (y) a Benchmark Replacement determined in accordance with clause (b) of the definition of “Benchmark Replacement” for all purposes hereunder and under any Loan Document in respect of any Benchmark setting will become effective at 5:00 p.m., New York City time, on the fifth Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and Holdings so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis. Any such amendment with respect any Benchmark for Borrowings and Loans denominated in Euros will become effective at 5:00 p.m., New York City time, on the fifth Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and Holdings so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of any Benchmark with a Benchmark Replacement pursuant to this Section 2.08 will occur prior to the applicable Benchmark Transition Start Date.
(c) In connection with the implementation of or, solely with respect to a Benchmark Replacement for Borrowings or Loans denominated in Dollars, the use or administration of, a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time with the prior written consent of Holdings, not to be unreasonably withheld, delayed or conditioned.
(d) The Administrative Agent will promptly notify Holdings and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt in effect; provided Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.08, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.08.
(e) Upon Holdings’ receipt of notice of the commencement of a Benchmark Unavailability Period, Holdings may revoke any request for a Borrowing of, conversion to or continuation of Eurocurrency Loans or Term SOFR Loans, as applicable, to be made, converted or continued during any Benchmark Unavailability Period and, failing that, Holdings will be deemed to have converted any such request into a request for a Borrowing of or conversion to Daily Rate Loans. During any Benchmark Unavailability Period with respect to the Adjusted Term SOFR, (x) the component of the Alternate Base Rate based upon the Adjusted Term SOFR will not be used in any determination of the Alternate Base Rate, (y) any request by a Borrower for the conversion of any Borrowing to, or continuation of any Borrowing as, a Term SOFR Borrowing shall be ineffective and (z) any affected Borrowing shall be converted to a Daily Rate Borrowing on the last day of the Interest Period applicable thereto.
(f) Notwithstanding anything to the contrary herein, with respect to any Borrowings or Loans denominated in Dollars, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) Borrower shall any tenor for such Benchmark is not be permitted displayed on a screen or other information service that publishes such rate from time to submit any such request more than once time as selected by the Administrative Agent in any 30‑day period and its reasonable discretion or (B) nothing contained the regulatory supervisor for the administrator of such Xxxxxxxxx has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, to the extent any Tranche B-1 U.S. Term Loans are outstanding under this Agreement with respect to which the terms of this Section 2.14 2.08 do not apply, solely for purposes of determining whether the Required Lenders have taken any action contemplated by this Section 2.08 or the failure to provide confirmation definition of the continued effectiveness of term “Benchmark Transition Start Date” or “Early Opt-in Election”, such Market Disruption Event Tranche B-1 U.S. Term Loans shall be disregarded in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14making such determination.
Appears in 2 contracts
Samples: Credit Agreement (Pactiv Evergreen Inc.), Specified Refinancing Amendment, Incremental Amendment and Administrative Agency Transfer Agreement (Pactiv Evergreen Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period Period; or
(each iii) an Event of clauses (a) Default exists and (b), a “Market Disruption Event”), then, the Administrative Agent or Required Lender elect to suspend the right of the Borrower to obtain Eurodollar Borrowings; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, and (B) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders of each Class; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders of each Class have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBO Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.
(c) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.14, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.14.
(e) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing ineffective, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders .
(h) Amendments to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.142.18(b).
Appears in 2 contracts
Samples: Credit Agreement (F45 Training Holdings Inc.), Credit Agreement (F45 Training Holdings Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBOR Borrowing, a CDOR Borrowing or a EURIBOR Borrowing in any currency:
(a) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, LIBO Rate, CDOR Rate or the LIBO RateTerm SOFR or Term SOFREURIBO Rate, as applicablethe case may be, for such currency or in respect of a Loan in such currency for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate, LIBO Rate, CDOR Rate or the LIBO RateTerm SOFR or Term SOFREURIBO Rate, as applicablethe case may be, for such currency or in respect of a Loan in such currency for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their the Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Representative and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email electronic communication as provided in Section 9.01 as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, an affected LIBOR Borrowing, CDOR Borrowing or a EurocurrencySOFR Borrowing EURIBOR Borrowing, as the case may be, shall be ineffective and such ineffective, (ii) any affected LIBOR Borrowing, CDOR Borrowing or EURIBOR Borrowing that is requested to be continued shall (A) if denominated in U.S. Dollars, be converted to or continued as onof an ABR Borrowing or (B) otherwise, be repaid on the last day of the then current Interest Period applicable thereto as and (iii) any Borrowing Request for an affected LIBOR Borrowing, CDOR Borrowing or a EURIBOR Borrowing shall (A) if denominated in U.S. Dollars, be deemed a request for an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and or (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14otherwise, be ineffective.
Appears in 2 contracts
Samples: Credit Agreement (Urban Outfitters Inc), Credit Agreement (Urban Outfitters Inc)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing denominated in such currency shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing Borrowing, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) or the Borrower notifies the Administrative Agent that (i) the circumstances set forth in Section 2.14(a)(i) have arisen and such circumstances are unlikely to be temporary, (ii) the circumstances set forth in Section 2.14(a)(i) have not arisen but the supervisor for the administrator of the LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be used for determining interest rates for loans or (iii) syndicated loans currently being executed, or that include language similar to that contained in this Section 2.14, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Adjusted LIBO Rate then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin); provided, that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.08, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within three Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to confirm that such amendment. Until an alternate rate of interest shall be determined in accordance with this Section 2.14(b) (but, in the case of the circumstances giving rise described in clause (ii) or clause (iii) above, only to the Market Disruption Event continue to be in effect; provided that extent the LIBO Rate for such Interest Period is not available or published at such time on a current basis), (A) Borrower any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall not be permitted to submit any such request more than once in any 30‑day period ineffective shall be continued as, or converted into, an ABR Borrowing and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of if any Borrowing Request requests a Eurocurrency Borrowing, such Market Disruption Event Borrowing shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event be made as provided in this Section 2.14an ABR Borrowing.
Appears in 2 contracts
Samples: Second Lien Bridge Credit Agreement (Berry Global Group Inc), Second Lien Bridge Credit Agreement
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If at least two (2) Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the First Lien Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Adjusted BA Rate or the LIBO RateTerm SOFR or Term SOFRAdjusted EURIBOR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the First Lien Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate, the Adjusted BA Rate or the LIBO RateTerm SOFR or Term SOFRAdjusted EURIBOR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (in each of clauses case with respect to the Loans impacted by this clause (b) or clause (a) and (b)above, a “Market Disruption EventImpacted Loans”), then, ; then the First Lien Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, telephone or facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the First Lien Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) in the event any Loans denominated in Dollars or Canadian Dollars are so affected, (x) any Interest Election Request that requests the conversion of any applicable Borrowing in Dollars or Canadian Dollars to, or continuation of any such Borrowing in Dollars or Canadian Dollars as, a EurocurrencySOFR Eurodollar Borrowing in Dollars or Canadian Dollars shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiy) if any Borrowing Request requests a EurocurrencySOFR BorrowingEurodollar Borrowing in Dollars or Canadian Dollars, then such Borrowing shall be made as an ABR Borrowing. During , and (ii) in the event any period Loans denominated in which a Market Disruption Event is an Alternative Currency (other than Canadian Dollars) are so affected, the relevant interest rate shall be determined in effectaccordance with clause (ii) of the definition of “LIBO Rate” or “EURIBOR”, as applicable; provided, however, that, in each case, the Borrower may request revoke any Borrowing Request that is pending when such notice is received.
(b) Notwithstanding the foregoing, if (i) the First Lien Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be has made such determination described in effect; provided that clause (Aa)(i) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in of this Section 2.14 or is advised by the failure to provide confirmation Required Lenders of the continued effectiveness their determination described in clause (a)(ii) of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14, and in each case such circumstances are unlikely to be temporary, (ii) a public statement or publication of information has been made by or on behalf of the administrator of the applicable LIBO Rate announcing that such administrator has ceased or will cease to provide such LIBO Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such LIBO Rate, (iii) a public statement or publication of information has been made by the regulatory supervisor for the administrator of the applicable LIBO Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the applicable LIBO Rate, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for the applicable LIBO Rate, which states that the administrator of such LIBO Rate has ceased or will cease to provide such LIBO Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such LIBO Rate or (iv) the supervisor for the administrator of the applicable LIBO Rate or a Governmental Authority having jurisdiction over the First Lien Administrative Agent has made a public statement identifying a specific date after which the London interbank offered rate shall no longer be used for determining interest rates for loans, then in each case the First Lien Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable; provided that, until so amended, such Impacted Loans will be handled as otherwise provided pursuant to the terms of this Section 2.14; provided, further, that, in the case of Term Loans, such alternate rate of interest to the LIBO Rate shall have a floor of zero. Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement, unless and solely to the extent that there shall not exist a broadly accepted comparable successor benchmark rate on the date of such proposed amendment (as reasonably determined by the First Lien Administrative Agent and the Borrower), in which case such amendment shall become effective with respect to each Class without any further action or consent of any other party to this Agreement so long as the First Lien Administrative Agent shall not have received, within five Business Days of the date notice of amendment is provided to the Lenders, a written notice from the Required Lenders of such Class stating that such Required Lenders object to such amendment.
Appears in 2 contracts
Samples: Credit Agreement (Sotera Health Co), Credit Agreement (Sotera Health Topco, Inc.)
Alternate Rate of Interest. (a) Subject to Section 2.27a LIBOR Successor Rate being implemented in accordance with clause (b) below, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBOR Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Rate for such Interest Period is not available or published on a current basis and such circumstances are unlikely to be temporary) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their the Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof (which may be by telephone) to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR an affected LIBOR Borrowing shall be ineffective and such ineffective, (ii) any affected LIBOR Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiiii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such for an affected LIBOR Borrowing shall be made as deemed to be a request for an ABR Borrowing. During .
(b) Notwithstanding anything to the contrary in this Agreement or any period in which a Market Disruption Event is in effectother Loan Document, Borrower may request that if the Administrative Agent request determines (which determination shall be conclusive absent manifest error), or the Required Lenders notify the Administrative Agent (with a copy to confirm the Borrower) that the Required Lenders have determined, that:
(i) the circumstances giving rise described in Section 2.14(a)(i) have arisen and such circumstances are unlikely to be temporary; or
(ii) the supervisor for the administrator of the LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be made available, or used for determining the interest rate of loans, then, after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate with an alternate benchmark rate (including any mathematical or other adjustments to the Market Disruption Event continue benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in the United States in lieu of the LIBO Rate (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes and, notwithstanding anything to the contrary in Section 10.08, any such amendment shall become effective at 5:00 p.m. (New York City time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent notice that such Required Lenders do not accept such amendment; provided that, if such LIBOR Successor Rate shall be less than zero, such rate shall be deemed to be in effect; provided that zero for purposes of this Agreement. If no LIBOR Successor Rate has been determined and the circumstances under clause (Ai) above exist, the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended (to the extent of the affected LIBOR Loans or Interest Periods). Upon receipt of such notice, the Borrower shall not may revoke any pending request for a LIBOR Borrowing of, conversion to or continuation of LIBOR Loans (to the extent of the affected LIBOR Loans or Interest Periods) or, failing that, will be permitted deemed to submit any have converted such request more than once into a request for an ABR Borrowing in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14amount specified therein.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Leidos Holdings, Inc.), Credit Agreement (Leidos Holdings, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBO Rate Borrowing or a CDOR Rate Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRCDOR Rate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRCDOR Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall promptly give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR LIBO Rate Borrowing or CDOR Rate Borrowing shall be ineffective and such Borrowing shall be continued as, or converted to, an ABR Borrowing or Canadian Prime Rate Borrowing, as applicable (in the case of any conversion to an ABR Borrowing or continued as onof Canadian Prime Rate Borrowing, on the last day of the Interest Period applicable thereto as an ABR Borrowing thereof), and (ii) if any Borrowing Request requests a EurocurrencySOFR LIBO Rate Borrowing or CDOR Rate Borrowing, such Borrowing shall be made as an ABR Borrowing or a Canadian Prime Rate Borrowing, as applicable. During Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, if at any period time there ceases to exist a LIBO Rate or other interbank rate in which a the London Market Disruption Event is in effect, Borrower may request that regulated or otherwise overseen or authorized by the ICE Benchmark Administration or U.K. Financial Conduct Authority for interest periods greater than one Business Day or the Administrative Agent request determines in good faith (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 2.13(i) or (ii) above have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances above have not arisen but the supervisor for the administrator of the LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for fixed periods for syndicated loans in the United States at such time (it being agreed that such rate shall not result in a higher cost of funding than ABR Borrowings), and shall enter into an amendment to the Loan Documents to reflect such alternate rate of interest and such other related changes as may be applicable which are agreed by the Borrower and the Administrative Agent at such time; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Notwithstanding anything to the contrary in the Loan Documents, such amendment shall become effective without any further action or consent of any other party to Loan Documents so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that they object to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14amendment.
Appears in 2 contracts
Samples: Incremental Joinder to First Lien Credit Agreement (Post Holdings, Inc.), First Lien Credit Agreement (Post Holdings, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (i) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(a) the Administrative Agent determines in good faith (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Eurodollar Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Borrowers and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Borrowers and the Lenders that the circumstances giving rise to such notice no longer existexist (which notification shall be made promptly after the Administrative Agent obtains knowledge of the cessation of such circumstances), (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective ineffective, and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing Borrowing, and (ii) if any Borrowing Request for a Eurodollar Borrowing shall be treated as a request for an ABR Borrowing.
(ii) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in paragraph (i)(a) of this Section have arisen (including because the Screen Rate is not available or published on a current basis) and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in paragraph (i)(a) of this Section have not arisen but the supervisor for the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Company shall endeavor to establish an alternate rate of interest to the Adjusted LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated in dollars in the United States at such time, and the Administrative Agent and the Company shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable; provided that if such alternate rate of interest shall be less than 1.00%, such rate shall be deemed to be 1.00% for all purposes of this Agreement. Such amendment shall become effective with the prior consent of the Required Lenders and without any further action or consent of any other party to this Agreement. Until an alternate rate of interest shall be determined in accordance with this paragraph (but, in the case of the circumstances described in clause (ii) above, only to the extent the Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurocurrencySOFR BorrowingEurodollar Term Loan Borrowing shall be ineffective, and such Borrowing shall be made continued as an ABR Term Loan Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (By) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event any Borrowing Request for a Eurodollar Term Loan Borrowing shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of be treated as a Market Disruption Event as provided in this Section 2.14request for an ABR Term Loan Borrowing.
Appears in 2 contracts
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.), Restructuring Support Agreement (Ascena Retail Group, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; time or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be converted to or continued as onof repaid on the last day of the then current Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in which a Market Disruption Event is in effectElection, Borrower may request that as applicable, the Administrative Agent request and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event or any Early Opt-in Election will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment in connection with a Benchmark Transition Event containing any SOFR-Based Rate, the Lenders shall be entitled to confirm that the circumstances giving rise object only to the Market Disruption Event continue Benchmark Replacement Adjustment contained therein (if any). No replacement of LIBO Rate with a Benchmark Replacement will occur prior to be in effect; provided that the applicable Benchmark Transition Start Date.
(Ac) In connection with the implementation of a Benchmark Replacement, the Administrative Agent and the Borrower shall not be permitted will have the right to submit any such request more than once make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (Biv) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.14 2.14, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect the Administrative Agent’s or Required Lenders’ right other party hereto, except, in each case, as expressly required pursuant to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
(e) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing.
Appears in 2 contracts
Samples: Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or;
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period Period; or
(each of clauses (ac) and (b), the Administrative Agent is advised by a “Market Disruption Event”), then, Lender that it has become unlawful for such Lender to honor its obligation to make or maintain Eurocurrency Loans hereunder; then the Administrative Agent shall give notice thereof to the Borrower by telephone or telecopy, and to the applicable Lenders by telephoneElectronic System, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted (in the case of clause (c) above, only as to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and affected Lender), (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During Borrowing (in the case of clause (c) above, only as to the affected Lender) and (iii) if in accordance with clause (c) above any period in which a Market Disruption Event Lender determines that it is in effectno longer lawful for such Lender or its applicable lending office (subject to Section 2.19(a)) to maintain any existing Eurocurrency Loans, or to continue to charge interest rates based upon the LIBO Rate, then, on notice thereof by such Lender to the Borrower may request that through the Administrative Agent, any obligation of such Lender to continue Eurocurrency Loans shall be suspended until such Lender notifies the Administrative Agent request and the Required Lenders to confirm Borrower that the circumstances giving rise to such determination no longer exist and, in such event, all Eurocurrency Loans of such Lender shall be converted to ABR Loans, either on the Market Disruption Event last day of the Interest Period thereof, if such Lender may lawfully continue to be in effectmaintain such Eurocurrency Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Loans; provided that (A) Borrower if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14permitted.
Appears in 2 contracts
Samples: Credit Agreement (American Realty Capital Trust V, Inc.), Credit Agreement (American Realty Capital Global Trust, Inc.)
Alternate Rate of Interest. (a) Subject to Section 2.27clauses (b), if(c), (d), (e), (f) and (g) of this Subsection 1.5, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany Term SOFR Loan:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm Term SOFR or Term SOFRRate, as applicableapplicable (including because the Term SOFR Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm Term SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Representative and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of request to convert any applicable Borrowing Loan to, or continuation of any such Borrowing Loan as, a EurocurrencySOFR Borrowing Term SOFR Loan shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request borrowing request requests a EurocurrencySOFR BorrowingTerm SOFR Loan, such Borrowing Loan shall be made as an ABR BorrowingLoan.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m., New York City time, on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided by the Administrative Agent to the Lenders and the Borrower Representative without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (other than as set forth in the definition of “Benchmark Replacement”) so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document (other than as set forth in the definition of “Benchmark Replacement”).
(d) The Administrative Agent will promptly notify the Borrower Representative and the Lenders (and in any event within five Business Days) of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, the Borrower Representative or any Lender (or group of Lenders) pursuant to this Subsection 1.5, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Subsection 1.5.
(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term SOFR Loan borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any period Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in which a Market Disruption Event is in effect, Borrower may request that the any determination of ABR.
(g) The Administrative Agent request the Required Lenders to confirm that the circumstances giving rise and, to the Market Disruption Event continue to be extent any other party hereto shall have any consent or consultation right in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation respect of the continued effectiveness selection of such Market Disruption Event Benchmark Replacement, each such applicable party shall use commercially reasonable efforts to satisfy any applicable Internal Revenue Service guidance, including Proposed Treasury Regulation 1.1001-6 and any future guidance, to the effect that a Benchmark Replacement will not result in a deemed exchange for U.S. federal income tax purposes of any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in Loan under this Section 2.14Agreement.
Appears in 2 contracts
Samples: Credit Agreement (SiteOne Landscape Supply, Inc.), Credit Agreement (SiteOne Landscape Supply, Inc.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d) and (e) of this Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan2.18:
(ai) the The Administrative Agent determines (which determination shall be conclusive absent manifest error) at any time, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term Daily Simple SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the The Administrative Agent is advised by the Required Lenders that the at any time, Adjusted LIBO Rate or the LIBO RateTerm Daily Simple SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, bearing interest by reference to Adjusted Daily Simple SOFR; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist with respect to the relevant Benchmark, the Loans shall bear interest at the Alternate Base Rate.
(ib) Notwithstanding anything to the contrary herein or in any Interest Election Request that requests other Basic Document (and any Hedge Agreement shall be deemed not to be a “Basic Document” for purposes of this Section 2.18), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the conversion Reference Time in respect of any applicable Borrowing setting of the then-current Benchmark, then such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Basic Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders and the Borrower without any amendment to, or continuation further action or consent of any such Borrowing asother party to, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted to this Agreement or continued any other Basic Document so long as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders to confirm that the circumstances giving rise of each affected Class.
(c) Notwithstanding anything to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once contrary herein or in any 30‑day period other Basic Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Basic Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Basic Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (a) any occurrence of a Benchmark Transition Event, (b) the implementation of any Benchmark Replacement, (c) the effectiveness of any Benchmark Replacement Conforming Changes, and (Bd) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14 2.18, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect other party to this Agreement or any other Basic Document, except, in each case, as expressly required pursuant to this Section 2.18.
(e) Upon the Administrative AgentBorrower’s or Required Lenders’ right to provide any additional notices receipt of notice of the commencement of a Market Disruption Event as provided in this Section 2.14Benchmark Unavailability Period, and at all times during the continuation of a Benchmark Unavailability Period, the Loans will bear interest at the Alternate Base Rate.
Appears in 2 contracts
Samples: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Alternate Rate of Interest. Subject to Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) If fewer than two Reference Banks furnish timely information to the Administrative Agent determines (which determination for determining the Eurodollar Rate for any Eurodollar Rate Advances or the Adjusted CD Rate for any Adjusted CD Rate Advances comprising any requested Borrowing, the Administrative Agent will notify the Banks and the Borrower thereof, and the right of the Borrower to select Advances of such Type for such Borrowing or any subsequent Borrowing shall be conclusive absent manifest errorsuspended until the Administrative Agent shall notify the Borrower and the Banks that the circumstances causing such suspension no longer exist, and (i) that adequate any request by the Borrower for a Eurodollar Rate Auction Advance shall be of no force and reasonable means do not exist effect and shall be denied by the Administrative Agent and (ii) unless the Borrower shall withdraw its request for ascertaining such Advance by notice to the Administrative Agent, any request by the Borrower for a Eurodollar Rate Contract Advance or an Adjusted LIBO CD Rate or the LIBO RateTerm SOFR or Term SOFRAdvance, as applicablethe case may be, shall be deemed to be a request for such Interest Periodan Alternate Base Rate Advance; provided that no Benchmark Transition Event shall have occurred at such time; orand
(b) If the Majority Banks shall, at least one Business Day before the date of any requested Borrowing, notify the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Eurodollar Rate for any Eurodollar Rate Advances or the LIBO RateTerm SOFR or Term SOFR, as applicable, Adjusted CD Rate for any Adjusted CD Rate Advances comprising such Interest Period Borrowing will not adequately and fairly reflect the cost to such Lenders Banks of making or maintaining funding their Loans included in such Borrowing respective Advances for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), thenBorrowing, the Administrative Agent will notify the Banks and the Borrower thereof, and the right of the Borrower to select Advances of such Type for such Borrowing or any subsequent Borrowing shall give notice thereof to be suspended until the Administrative Agent shall notify the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower and the Lenders Banks that the circumstances giving rise to causing such notice suspension no longer exist, and (i) any Interest Election Request that requests request by the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, Borrower for a EurocurrencySOFR Borrowing Eurodollar Rate Auction Advance shall be ineffective of no force and such Borrowing effect and shall be converted to or continued as onof denied by the last day of the Interest Period applicable thereto as an ABR Borrowing Administrative Agent and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that unless the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted withdraw its request for such Advance by notice to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s , any request by the Borrower for a Eurodollar Rate Contract Advance or Required Lenders’ right an Adjusted CD Rate Advance, as the case may be, shall be deemed to provide any additional notices of be a Market Disruption Event as provided in this Section 2.14request for an Alternate Base Rate Advance.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Union Pacific Corp), Revolving Credit Agreement (Union Pacific Corp)
Alternate Rate of Interest. (a) Subject to clauses (b) (c), (d), (e), (f) and (g) of this Section 2.272.14, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(ai) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR Rate (including because the LIBO Screen Rate is not available or Term SOFR, as applicablepublished on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Term Benchmark Borrowing shall be ineffective and any such Term Benchmark Borrowing shall be repaid or converted to or continued as onof into an ABR Borrowing on the last day of the then current Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Term Benchmark Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request ; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted.
(b) Notwithstanding anything to the Market Disruption Event continue contrary herein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.14), if a Benchmark Transition Event, an Early Opt-in effectElection, or an Other Benchmark Rate Election as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that that, this clause (Ac) Borrower shall not be permitted effective unless the Administrative Agent has delivered to submit any such request more than once the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, an Early Opt-in Election, or an Other Benchmark Rate Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (Bv) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14 2.14, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect the Administrative Agent’s other party to this Agreement or Required Lenders’ right any other Loan Document, except, in each case, as expressly required pursuant to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR, LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
Appears in 2 contracts
Samples: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Alternate Rate of Interest. Subject to Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) If the Administrative Agent determines has made the determination (which such determination shall to be conclusive absent manifest error) that adequate and reasonable means do not exist (a) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for ascertaining newly originated loans in the Adjusted LIBO Rate U.S. syndicated loan market in the applicable currency or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental Authority having, or purporting to have, jurisdiction over the Administrative Agent is advised has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the U.S. syndicated loan market in the applicable currency, then the Administrative Agent may, to the extent practicable (in consultation with, and approval by, the Borrower and as determined by the Required Lenders that the Adjusted LIBO Rate Administrative Agent to be generally in accordance with similar situations in other transactions in which it is serving as administrative agent or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (botherwise consistent with market practice generally), establish a replacement interest rate (the “Market Disruption EventReplacement Rate”), thenin which case, the Replacement Rate shall, subject to the next two sentences, replace such applicable interest rate for all purposes under the Loan Documents. In connection with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent and the Borrower as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 5.06. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including Section 12.02(b)), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall give notice thereof not have received, within five (5) Business Days of the delivery of such amendment to the Borrower and Lenders, written notices from such Lenders that in the applicable Lenders aggregate constitute Majority Lenders, with each such notice stating that such Lender objects to such amendment (which such notice shall note with specificity the particular provisions of the amendment to which such Lender objects). To the extent the Replacement Rate is approved by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies and the Borrower and in connection with this Section 5.06, the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing Replacement Rate shall be ineffective and applied in a manner consistent with market practice; provided that, in each case, to the extent such Borrowing market practice is not administratively feasible for the Administrative Agent, such Replacement Rate shall be converted to or continued applied as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that otherwise reasonably determined by the Administrative Agent request (it being understood that any such modification by the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower Administrative Agent shall not be permitted to submit require the consent of, or consultation with, any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14).
Appears in 2 contracts
Samples: Credit Agreement (Rattler Midstream Lp), Credit Agreement (Rattler Midstream Lp)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany EurodollarTerm SOFR Loanor CDOR Rate Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) ), that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO RateTerm SOFR or the CDOR Rate (including because the LIBO ScreenTerm SOFR Reference Rate or the LIBO RateTerm SOFR or Term SOFRCDO Screen Rate, as applicable, is not available or published on a current basis) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, the CDOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Company and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and thereafter, but not later than 10:00 a.m. (London time, or in the case of a CDOR Rate Borrowing, New York City time) on the first day of such Interest Period, and, until the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR an affected EurodollarTerm SOFR or CDOR Rate Borrowing shall be ineffective and such ineffective, (B) any affected EurodollarTerm SOFR Borrowing that is requested to be continued shall be converted to or an ABR Borrowing on the last day of the Interest Period applicable thereto, (C) any affected CDOR Rate Borrowing that is requested to be continued as onof shall be converted to a Canadian Prime Rate Borrowing on the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiD) if any Borrowing Request requests an affected EurodollarTerm SOFR or CDOR Rate Borrowing, then, unless the applicable Borrower notifies the Administrative Agent by 2:00 p.m. (London time, or in the case of a EurocurrencySOFR CDOR Rate Borrowing, New York City time) on the date of such Borrowing that it elects not to borrow on such date, such Borrowing shall (1) in the case of a Borrowing denominated in US Dollars, be made as deemed a request for an ABR Borrowing or (2) in the case of a Borrowing denominated in Canadian Dollars, be deemed a request for a Canadian Prime Rate Borrowing. During .
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, if a Benchmark Transition Event or an Early Opt-in which Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Market Disruption Event Benchmark Replacement is determined in effectaccordance with clause (1) or (2) of the definition of “Benchmark Replacement” with respect to US Dollars for such Benchmark Replacement Date, Borrower may request that such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (32) of the definition of “Benchmark Replacement” with respect to US Dollars or CAD for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent request has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders to confirm that the circumstances giving rise Lenders.
(c) Notwithstanding anything to the Market Disruption contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, with respect to a Loan denominated in US Dollars, if a Term SOFR Transition Event continue and its related Benchmark Replacement Date have occurred prior to be the Reference Time in effectrespect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that that, this clause (Ac) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect effective unless the Administrative Agent’s or Required Lenders’ right Agent has delivered to provide any additional notices the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Market Disruption Term SOFR Transition Event as provided and may do so in this Section 2.14its sole discretion.
Appears in 1 contract
Samples: Amended and Restated Revolving Credit Agreement (Bath & Body Works, Inc.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d) and (e) of this Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan2.18:
(ai) the The Administrative Agent determines (which determination shall be conclusive absent manifest error) at any time, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term Daily Simple SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the The Administrative Agent is advised by the Required Lenders that the at any time, Adjusted LIBO Rate or the LIBO RateTerm Daily Simple SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, bearing interest by reference to Adjusted Daily Simple SOFR; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist with respect to the relevant Benchmark, the Loans shall bear interest at the Alternate Base Rate.
(ib) Notwithstanding anything to the contrary herein or in any Interest Election Request that requests other Basic Document (and any Hedge Agreement shall be deemed not to be a “Basic Document” for purposes of this Section 2.18), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the conversion Reference Time in respect of any applicable Borrowing setting of the then-current Benchmark, then such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Basic Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders and the Borrower without any amendment to, or continuation further action or consent of any other party to, this Agreement or any other Basic Document so long as the Administrative 76 Agent has not received, by such Borrowing astime, a EurocurrencySOFR Borrowing shall be ineffective and written notice of objection to such Borrowing shall be converted Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class.
(c) Notwithstanding anything to the contrary herein or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if in any Borrowing Request requests a EurocurrencySOFR Borrowingother Basic Document, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request will have the Required Lenders right to confirm that the circumstances giving rise make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once contrary herein or in any 30‑day period other Basic Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Basic Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (a) any occurrence of a Benchmark Transition Event, (b) the implementation of any Benchmark Replacement, (c) the effectiveness of any Benchmark Replacement Conforming Changes, and (Bd) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14 2.18, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect other party to this Agreement or any other Basic Document, except, in each case, as expressly required pursuant to this Section 2.18.
(e) Upon the Administrative AgentBorrower’s or Required Lenders’ right to provide any additional notices receipt of notice of the commencement of a Market Disruption Event as provided in this Section 2.14.Benchmark Unavailability Period, and at all times during the continuation of a Benchmark Unavailability Period, the Loans will bear interest at the Alternate Base Rate. 77
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent determines or is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Lead Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Lead Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing ineffective, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request ; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the Market Disruption Event continue other Type of Borrowings shall be permitted. In addition, any pending Borrowing Request for a Eurodollar Loan may be revoked by the Lead Borrower or it shall be deemed a request for an ABR Loan, and each outstanding Eurodollar Loan will automatically, on the last day of the then current Interest Period applicable thereto, become an ABR Loan; or
(c) at any other time after the date hereof, any Change in Law shall make it unlawful, or any Governmental Authority having jurisdiction over a Lender or its lending office shall assert that it is unlawful, for any Lender to make or maintain Eurodollar Loans, such Lender shall forthwith give notice of such circumstances to the Agent and the Borrower and thereupon (i) the commitment of the Lenders to make Eurodollar Loans shall forthwith be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period suspended and (Bii) nothing contained in this Section 2.14 any Eurodollar Loans then outstanding shall be converted automatically to ABR Loans on the last day of each Interest Period applicable to such Eurodollar Loans or the failure to provide confirmation of the continued effectiveness of within such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event earlier period as provided in this Section 2.14may be required by Legal Requirements.
Appears in 1 contract
Samples: Revolving Credit Agreement (Strategic Realty Trust, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines in good faith (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans included in such Borrowing for such Interest Period Period; or
(each iii) the rates referenced in the definition of clauses (a) and (b), a “Market Disruption Event”), then, Eurodollar Rate” cease to be an interest rate benchmark for short term interest rates; then the Administrative Agent shall give notice thereof and the reason therefor (in reasonable detail) to the Borrower Parent and the applicable Lenders by telephone, facsimile transmission or, unless otherwise required by the Parent or PDF attachment any Lender prior to an email such delivery, electronic mail (PDF) as promptly as practicable thereafter and and, (x) until the Administrative Agent notifies the Borrower Parent and the Lenders that the circumstances giving rise to such notice no longer exist (which the Administrative Agent shall use reasonable efforts to do promptly after such circumstances cease to exist), (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period Borrowing and (y) solely in which a Market Disruption Event is the case of the circumstance described in effectclause (iii) above, Borrower may request that if either the Parent or the Required Lenders shall so request, the Parent and the Administrative Agent request will negotiate in good faith to amend the definition of “Eurodollar Base Rate” to incorporate a successor benchmark rate that is acceptable to the Parent, the Administrative Agent and the Required Lenders to confirm Lenders; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the Market Disruption Event continue other Type of Borrowings shall be permitted.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if (i) the Administrative Agent has made the determination (such determination to be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period for the applicable currency (including because any applicable interest rate specified herein is not available or published on a current basis) and such circumstance is unlikely to be temporary or (ii) the Administrative Agent has made the determination (such determination to be conclusive absent manifest error), or the Parent has notified the Administrative Agent that the Parent has determined, that (x) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in effectthe U.S. syndicated loan market in the applicable currency or (y) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental Authority having, or purporting to have jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be made available or used for determining interest rates for loans in the U.S. syndicated loan market in the applicable currency, then, (1) reasonably promptly after such determination by the Administrative Agent (or, if applicable, receipt by the Administrative Agent of such notice), the Administrative Agent may, to the extent practicable, and with the consent of the Parent, establish a replacement interest rate which shall in no event be less than 0% (the “Replacement Rate”) for the applicable currency (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar syndicated credit facilities denominated in the applicable currency for such alternative benchmarks, and as it reasonably determines to be generally in accordance with similar situations in other transactions in which the Administrative Agent is serving as administrative agent or otherwise consistent with market practice generally, and (2) the Administrative Agent and the Borrowers may amend this Agreement to reflect such Replacement Rate, together with any conforming changes to the definitions of Alternate Base Rate, Eurodollar Base Rate, Eurodollar Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent in consultation with the Parent. In connection with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent and the Borrowers, as may be necessary or appropriate, in the opinion of the Administrative Agent in consultation with the Parent, to effect the provisions of this Section 2.14(b). Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including Section 9.02), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the delivery of such amendment to the Lenders, written notices from such Lenders that in the aggregate constitute Required Lenders, with each such notice stating that such Lender objects to such amendment (which such notice shall note with specificity the particular provisions of the amendment to which such Lender objects) or to the Replacement Rate (in which case, for the avoidance of doubt, the Administrative Agent and the Borrowers may enter into an alternative amendment for such purpose, which shall become effective as aforesaid). To the extent the Replacement Rate is approved by the Administrative Agent and the Parent in connection with this clause (b), the Replacement Rate shall be applied in a manner consistent with market practice; provided that (A) Borrower shall that, in each case, to the extent such market practice is not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect administratively feasible for the Administrative Agent’s , such Replacement Rate shall be applied as otherwise reasonably determined by the Administrative Agent (it being understood that any such modification by the Administrative Agent shall not require the consent of, or Required consultation with, any of the Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14).
Appears in 1 contract
Samples: 5 Year Revolving Credit Agreement (Diamond Offshore Drilling, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; Period; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist (which notice shall be promptly given by the Administrative Agent when such circumstances no longer exist), (i) any Interest Election Request that requests the conversion obligations of any applicable Borrowing to, the Lenders to make Eurodollar Loans or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing to continue or convert outstanding Loans as or into Eurodollar Loans shall be ineffective suspended and (ii) all such Borrowing affected Loans shall be converted to or continued as onof into ABR Loans on the last day of the then current Interest Period applicable thereto unless the Borrower prepays such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative Agent at least one (1) Business Day before the date of any Eurodollar Borrowing for which a Borrowing Request or Interest Election Request has previously been given that it elects not to borrow, continue or convert to a Eurodollar Borrowing on such date, then such Borrowing shall be made as, continued as or converted into an ABR Borrowing Borrowing.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the Adjusted LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing Request requests of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a EurocurrencySOFR Borrowing, such request for a Borrowing shall be made as an of or conversion to ABR BorrowingLoans. During any period in which Benchmark Unavailability Period or at any time that a Market Disruption Event tenor for the then-current Benchmark is in effectnot an Available Tenor, Borrower may request that the Administrative Agent request component of Alternate Base Rate based upon the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall then-current Benchmark or such tenor for such Benchmark, as applicable, will not be permitted to submit any such request more than once used in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation determination of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Alternate Base Rate.
Appears in 1 contract
Samples: Credit Agreement (LendingTree, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Yield Period for a Eurocurrency Borrowingany SOFR LoanParticipation:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Bank Rate or the LIBO RateTerm SOFR or Term SOFREurodollar Rate, as applicableapplicable (including because the Eurodollar Screen Rate is not available or published on a current basis), for U.S dollars for such Interest Yield Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders Majority Purchasers that the Adjusted LIBO Bank Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Yield Period will not adequately and fairly reflect the cost to such Lenders Purchasers of making or maintaining their Loans Participations (or its Participation) included in such Borrowing the Participations for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Yield Period; then the Administrative Agent shall give notice thereof to the Borrower Seller and the applicable Lenders Purchaser Agents by telephone, facsimile transmission telephone or PDF attachment to an email electronic mail as promptly as practicable thereafter and thereafter. Thereafter, the obligation of the Purchasers to make or maintain a Participation at the Bank Rate shall be suspended until the Administrative Agent notifies (upon the Borrower instruction of the Majority Purchasers) revokes such notice. Upon receipt of such notice, the Seller may revoke any pending request for a Participation, or failing that, Participations shall be computed by reference to the Base Rate in the amount specified therein.
(b) Notwithstanding anything to the contrary herein or in any other Transaction Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Agent and the Lenders that Seller may amend this Agreement to replace the circumstances giving rise Bank Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Agent has posted such proposed amendment to all Purchaser Agents and the Seller, so long as the Agent has not received, by such time, written notice of objection to such proposed amendment from any Purchaser Agent; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Purchaser Agents shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that all Purchaser Agents have delivered to the Agent written notice no longer existthat such Purchaser Agents accept such amendment. No replacement of Bank Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.
(c) In connection with the implementation of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Agent will promptly notify the Seller and the Purchaser Agents of (i) any Interest Election Request that requests the conversion occurrence of any applicable Borrowing toa Benchmark Transition Event or an Early Opt-in Election, or continuation of any such Borrowing asas applicable, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if the implementation of any Borrowing Request requests Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or the Purchaser Agents pursuant to this Section 1.14, including any determination with respect to a EurocurrencySOFR Borrowingtenor, such Borrowing rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 1.14.
(e) Upon the Seller’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Seller may revoke any pending request for a Participation, or failing that, the Participations shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise calculated by reference to the Market Disruption Event continue to be Base Rate in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14amount specified therein.
Appears in 1 contract
Samples: Receivables Purchase Agreement (KAR Auction Services, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Eurocurrency Rate or the LIBO RateTerm SOFR or Term SOFREurocurrency Rate, as applicableapplicable (including because the Eurocurrency Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders or the Majority Lenders under the applicable Revolving Facility that the Adjusted LIBO Eurocurrency Rate or the LIBO RateTerm SOFR or Term SOFREurocurrency Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing denominated in the applicable currency shall be ineffective and in the case of any Borrowing denominated in Dollars, such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR BorrowingEurocurrency Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing. During .
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in which a Market Disruption Event is in effectElection, Borrower may request that as applicable, the Administrative Agent request and the Borrower may amend this Agreement to replace the Eurocurrency Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders to confirm that the circumstances giving rise have delivered to the Market Disruption Event continue Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurocurrency Rate with a Benchmark Replacement will occur prior to be in effect; provided that the applicable Benchmark Transition Start Date.
(Ac) Borrower shall not be permitted In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to submit any such request more than once make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (Biv) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.14 2.14, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect other party hereto, except, in each case, with the Administrative Agent’s or consent of the Borrower and the Required Lenders’ right Lenders as required pursuant to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
(e) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurocurrency Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing Borrowing, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in which a Market Disruption Event is in effectElection, Borrower may request that as applicable, the Administrative Agent request and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower unless the Administrative Agent has received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders of each Class. Any such amendment with respect to confirm an Early Opt-in Election will become effective on the date that Lenders comprising the circumstances giving rise Required Lenders of each Class have delivered to the Market Disruption Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of the LIBO Rate with a Benchmark Replacement pursuant to Section 2.14 will occur prior to the applicable Benchmark Transition Start Date
(c) In connection with the implementation of a Benchmark Replacement, the Administrative Agent and the Borrower will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event continue to be or an Early Opt-in effect; provided that Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (Aii) Borrower shall not be permitted to submit the implementation of any such request more than once in Benchmark Replacement, (iii) the effectiveness of any 30‑day period Benchmark Replacement Conforming Changes and (Biv) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.14 2.14, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect the Administrative Agent’s or Required Lenders’ right other party hereto, except, in each case, as expressly required pursuant to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
(e) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Loan of, conversion to or continuation of Eurocurrency Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period, the component of ABR based upon the LIBO Rate will not be used in any determination of ABR.
Appears in 1 contract
Samples: Credit Agreement (Cerence Inc.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.272.16, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany Term SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining Term SOFR, the Adjusted LIBO Term SOFR Reference Rate or the LIBO RateTerm SOFR or Adjusted Term SOFR, as applicable, applicable for a Loan for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or, or 71
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm Term SOFR or Term SOFR, as applicable, for a Loan for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist (which notification shall be made promptly after the Administrative Agent obtains knowledge of the cessation of the circumstances referenced in clause (i) above or receives notice from the Required Lenders in respect of the cessation of circumstances referenced in clause (ii) above), (iA) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Term SOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Term SOFR Borrowing, such Borrowing shall be made as an ABR Borrowing.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.16), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) [Reserved].
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.16, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.16.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term SOFR Revolving Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Revolving Borrowing of or conversion to ABR Loans. During any period in which Benchmark Unavailability Period or at any time that a Market Disruption Event tenor for the then-current Benchmark is in effectnot an Available Tenor, Borrower may request that the Administrative Agent request component of ABR based upon the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall then-current Benchmark or such tenor for such Benchmark, as applicable, will not be permitted to submit any such request more than once used in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation determination of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14ABR.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the applicable Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing denominated in such currency shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as thereto, an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request and the Borrower determine (which determination shall be conclusive absent manifest error) that (i) the circumstance set forth in Section 2.14(a) above has arisen and such circumstance is unlikely to be temporary or (ii) the circumstance set forth in Section 2.14(a) has not arisen but the supervisor for the administrator of the LIBO Rate, or the administrator of the LIBO Rate, or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate shall no longer be published or used for determining interest rates for loans, then (A) if the Administrative Agent and the Borrower reasonably determine that there exists a then prevailing market convention for determining a reference rate of interest for syndicated loans in Dollars as the successor to interest rates based on the LIBO Rate, the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (and such amendment shall, notwithstanding anything to the contrary in Section 9.08, become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and amendment), or (B) nothing contained if the Administrative Agent and the Borrower are unable to reasonably determine that a then prevailing market convention for determining a rate of interest for syndicated loans in the U.S. as the successor to interest rates based on the LIBO Rate does exist, the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect an alternate rate of interest and such other related changes to this Agreement as may be applicable, in each case that are acceptable to the Borrower and the Administrative Agent (and such amendment shall, notwithstanding anything to the contrary in Section 2.14 or 9.08, become effective so long as the failure to provide confirmation Administrative Agent shall not have received, within five Business Days of the continued effectiveness date notice of such Market Disruption Event shall in any way affect alternate rate of interest is provided to the Administrative Agent’s or Lenders, a written notice from the Required Lenders’ right Lenders stating that such Required Lenders object to provide any additional notices of a Market Disruption Event as provided in this Section 2.14such amendment).
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, prior to the commencement of any Interest Period for If a Eurocurrency Borrowingany SOFR Loan:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred occurs, Bank may, by notice to Borrower, amend this Note to establish an alternate rate of interest for SOFR that gives due consideration to the then-evolving or prevailing market convention for determining a rate of interest for commercial loans in US Dollars at such timetime (the "Alternate Rate"); or
Borrower acknowledges that the Alternate Rate may include a mathematical adjustment using any then-evolving or prevailing market convention or method for determining a spread adjustment for the replacement of SOFR (bwhich may include, if SOFR already contains such a spread, adding that spread to the Alternate Rate). The Bank may further amend the Note by such notice to Borrower to make technical, administrative or operational changes (including, without limitation, changes to the definition of "CB Floating Rate", the definition of "Interest Period", timing and frequency of determining rates and making payments of interest) that the Bank decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of the Alternate Rate. The Alternate Rate, together with all such technical, administrative and operational changes as specified in any notice, shall become effective at the later of (i) the Administrative Agent is advised fifth Business Day after the Bank has provided notice (including without limitation for this purpose, by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (aelectronic means) and (b), a “Market Disruption Event”), then, the Administrative Agent shall give notice thereof to the Borrower and (the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i"Notice Date") any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if a date specified by the Bank in the notice, without any Borrowing Request requests further action or consent of the Borrower, so long as Bank has not received, by 5:00 pm Eastern time on the Notice Date, written notice of objection to the Alternate Rate from the Borrower. If, on the date SOFR actually becomes permanently unavailable pursuant to a EurocurrencySOFR BorrowingBenchmark Transition Event, an Alternate Rate has not been established in this manner, Advances will, until an Alternate Rate is so established, bear interest at the CB Floating Rate. In no event shall the Alternate Rate be less than zero. In connection with the implementation of a rate replacement described in the paragraph above, Bank may from time to time, upon written notice to Borrower, make any further technical, administrative or operational changes to this Note (including changes to the definition of "CB Floating Rate", the definition of "Business Day", the timing and frequency of determining rates and making payments of interest, the timing of prepayment or conversion notices, the length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters) that Bank decides may be appropriate to reflect the adoption and implementation of such Borrowing rate replacement and to permit the administration thereof by Bank. All determinations by Bank under this section shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period conclusive and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14binding absent manifest error.
Appears in 1 contract
Samples: Line of Credit Note (Northern Technologies International Corp)
Alternate Rate of Interest. Subject to Section 2.27(a) In the event, ifand on each occasion, that on the day two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) Eurodollar Borrowing the Administrative Agent determines (shall have determined that Dollar deposits in the principal amounts of the Loans comprising such Borrowing are not generally available in the London interbank market, or that the rates at which determination shall be conclusive absent manifest error) such Dollar deposits are being offered will not adequately and fairly reflect the cost to the majority of Lenders of making or maintaining Eurodollar Loans during such Interest Period, or that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), thenRate, the Administrative Agent shall shall, as soon as practicable thereafter, give written notice thereof of such determination to the Borrower and the applicable Lenders by telephoneLenders. In the event of any such determination, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests request by the conversion of any applicable Borrower for a Eurodollar Borrowing to, pursuant to Section 2.03 or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing 2.10 shall be ineffective and such Borrowing shall deemed to be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as request for an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that Each determination by the Administrative Agent request under this Section shall be conclusive absent manifest error.
(i) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has provided such proposed amendment to the Borrower without any further action or consent of any Lender, so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from the Required Lenders Lenders. Any such amendment with respect to confirm an Early Opt-in Election will become effective on the date that the circumstances giving rise Lenders have delivered to the Market Disruption Event continue Administrative Agent written notice that the Lenders accept such amendment. No replacement of the LIBO Rate with a Benchmark Replacement pursuant to be this subsection (b) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in effect; provided that any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (A) any known occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes and (D) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.08, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from the Borrower, except, in each case, as expressly required pursuant to this Section 2.08.
(iv) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower shall not may revoke any request for a Borrowing of, conversion to or continuation of Eurodollar Loans to be permitted made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to submit have converted any such request more than once into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period, the component of the Alternate Base Rate based upon the LIBO Rate will not be used in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation determination of the continued effectiveness of such Market Disruption Event shall Alternate Base Rate.
(v) Notwithstanding anything herein or in any way affect other Loan Document to the Administrative Agent’s contrary, except as otherwise consented to in writing by the Borrower, any amendments to the Loan Documents made in connection with replacing the LIBO Rate with a Benchmark Replacement shall be undertaken in a manner that satisfies any applicable requirements under Proposed Treasury Regulations Section 1.1001-6 (or Required Lenders’ right to provide any additional notices successor or final United States Treasury regulations or other official guidance from the Internal Revenue Service) such that the applicable amendments shall not result in a deemed exchange of a Market Disruption Event as provided in this any Loan under Section 2.141001 of the Code.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate (including, without limitation, because the Screen Rate is not available or the LIBO RateTerm SOFR or Term SOFR, as applicablepublished on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, telephone or facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist (but subject to paragraph (b) of this Section), (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective ineffective, and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Borrowing, Eurocurrency Borrowing such Borrowing shall be made as an ABR Borrowing (or such Borrowing shall not be made if the Borrower revokes (and in such circumstances, such Borrowing Request may be revoked notwithstanding any other provision of this Agreement) such Borrowing Request by telephonic notice, confirmed promptly in writing, not later than one Business Day prior to the proposed date of such Borrowing. During ).
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in paragraph (a)(i) of this Section have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in such paragraph (a)(i) have not arisen but the supervisor for the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to that based on the Screen Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated in US Dollars in the United States at such time, and the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate). Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within 10 Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to confirm such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of paragraph (a) of this Section, only to the extent the Screen Rate for such Interest Period is not available or published at such time on a current basis), clauses (A) and (B) of paragraph (a) of this Section shall be applicable. Notwithstanding the foregoing, if any alternate rate of interest established pursuant to this paragraph (b) (without giving effect to the Applicable Rate or any alternative spread that may have been agreed upon over the applicable Lenders’ deemed cost of funds) shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.
(c) If any Lender determines that due to any Change in Law it is unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to charge interest rates based upon the LIBO Rate or Adjusted LIBO Rate as contemplated by this Agreement, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue the affected Loans or to convert ABR Loans to affected Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist (which notice such Lender agrees to promptly give), (ii) upon receipt of such notice, the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted upon demand from such Lender (with a copy to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s ), prepay the affected Loans of such Lender or Required Lenders’ right if lawful and otherwise permitted hereunder (including under Section 2.08), convert such Loans to provide ABR Loans (the rate of interest on which shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of Alternate Base Rate) and (iii) upon any additional notices such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under Section 2.13. Each Lender agrees to designate a different applicable lending office if such designation will avoid the need for any such notice and will not, in the good faith judgment of a Market Disruption Event as provided in this Section 2.14such Lender, otherwise be materially disadvantageous to such Lender.
Appears in 1 contract
Alternate Rate of Interest. Subject (a) IfSubject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.272.14, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing of any Class:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicablethe case may be, forapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period; , provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the a Majority in Interest of thethe Required Lenders of such Class that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate as the case may be, as applicableforapplicable, for the applicable Agreed Currency and such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for the applicable Agreed Currency and such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders of such Class by telephone, facsimile transmission or PDF attachment to an email othertelecopy or electronic imagingmail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders of such Class that the circumstances giving rise to such notice no longer exist, (iiA) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing of such Class to, or continuation of any Revolving Borrowing of such Borrowing Class as, a EurocurrencySOFR Borrowing Eurocurrency Borrowing, shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and ineffective, (iiiiB) if any affected Eurocurrency Borrowing that is requested to be continued shall be continued Borrowing Request requests a EurocurrencySOFR BorrowingEurocurrency Revolving Borrowing in dollars, such Borrowing shall be made as an ABR Borrowing and (iiiC ) if any Borrowing Request for an affectedrequests a Eurocurrency Borrowing be deemed a request for an ABR Borrowing.
(b) in a Permitted Foreign Currency, then such request shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Borrowing, then the other Types of Borrowings shall be permitted. During Furthermore, if If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such amendment is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to confirm such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.14(b), only to the extent the LIBO Screen Rate for the applicable currency and such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective, (y) if any Borrowing Request requests a Eurocurrency Borrowing denominated in dollars, such Borrowing shall be made as an ABR Borrowing and (z) any request by the Borrower forEurocurrency Loan in any Agreed Currency is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.14(a) with respect to the Adjusted LIBO Rate or the LIBO Rate (as applicable) for such Eurocurrency Loan then (i) if such Eurocurrency Loan is denominated in dollars, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in dollars on such day or (ii) if such Eurocurrency Loan is denominated in any Agreed Currency (other than dollars), then such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) be converted by the Administrative Agent to, and (subject to the remainder of this subclause (B)) shall constitute, an ABR Loan denominated in dollars (in an amount equal to the Dollar Equivalent of such Agreed Currency) on such day (it being understood and agreed that if the Borrower does not so prepay such Loan on such day by 12:00 noon, local time, the Administrative Agent is authorized to effect such conversion of such Eurocurrency Loan into an ABR Loan denominated in dollars), and, in the case of such subclause (B), upon the Borrower’s receipt of notice from the Administrative Agent that the circumstances giving rise to the Market Disruption Event continue aforementioned notice no longer exist, such ABR Loan denominated in dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency BorrowingLoan denominated in asuch original Agreed Currency (in an amount equal to the Permitted Foreign Currency shall be ineffective; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in zero for the purposes of this Section 2.14 or the failure to provide confirmation of the continued effectiveness Agreement.Equivalent of such Market Disruption Event shall in any way affect Agreed Currency) on the day of such notice being given to the Borrower by the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
Appears in 1 contract
Alternate Rate of Interest. (a) Subject to Section 2.27Sections 2.09(b)-(g), ifin the event, and on each occasion, that (i) on the date that is two (2) Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Eurodollar Revolving Loan:
, the Administrative Agent shall have reasonably determined (awhich determination shall be conclusive and binding upon the Borrower absent manifest error) that reasonable means do not exist for ascertaining the applicable LIBO Rate (including because the LIBO Screen Rate is not available or published on a current basis), or (ii) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, (A) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Term SOFR Rate (including because the Term SOFR Reference Rate is not available or the LIBO RateTerm SOFR or Term SOFR, as applicable, published on a current basis) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
Period or (bB) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Revolving Loans (or its Revolving Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, then the Administrative Agent shall shall, as soon as practicable thereafter, give written, facsimile or telegraphic notice thereof of such determination to the Borrower and the applicable Lenders by telephoneand, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any request by the Borrower for a Borrowing of Eurodollar Revolving Loans or Term Benchmark Revolving Loans hereunder (including pursuant to a refinancing with EurodollarTerm Benchmark Revolving Loans and including any request to continue, or to convert to, Eurodollar Revolving Loans or Term Benchmark Revolving Loans) shall be deemed a request for a Borrowing of ABR Revolving Loans; provided that no Benchmark Transition Event shall have occurred at such time.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then if a Benchmark Replacement is determined in accordance with clause (x)(1), (x)(2) or (2y)(1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (x)(3) or (y)(2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the tenth (10th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement,Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any Interest occurrence of a Benchmark Transition Event, an Early Opt-in Election Request that requests or an Other Benchmark Rate Election, as applicable, (ii) the conversion implementation of any applicable Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.09, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.09.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing toof, conversion to or continuation of Eurodollar Revolving Loans or Term Benchmark Revolving Loans, as applicable, to be made, converted or continued during any such Benchmark Unavailability Period and, failing that, either (xi) the Borrower will be deemed to have converted any request for a Eurodollar Revolving Loan Borrowing as, or Term Benchmark Borrowing into a EurocurrencySOFR request for a Borrowing of or conversion to ABR Loans or (yii) any Eurodollar Revolving Loan Borrowing or Term Benchmark Borrowing shall be ineffective and ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark or such Borrowing shall tenor for such Benchmark, as applicable, will not be converted used in any determination of the Alternate Base Rate. Furthermore, if any Eurodollar Revolving Loan or Term Benchmark Revolving Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Eurodollar Revolving Loan or continued Term Benchmark Revolving Loan, then until such time as onof a Benchmark Replacement is implemented pursuant to this Section 2.09, on the last day of the Interest Period applicable thereto as an ABR Borrowing and to such Revolving Loan (ii) or the next succeeding Business Day if any Borrowing Request requests such day is not a EurocurrencySOFR BorrowingBusiness Day), such Borrowing Revolving Loan shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that converted by the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower to, and shall not be permitted to submit any constitute, an ABR Loan on such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14day.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Required Lenders notify the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) Notwithstanding anything to the contrary in this Agreement or any period in which a Market Disruption Event is in effectother Loan Documents, Borrower may request that if the Administrative Agent request determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders Lenders, a copy to confirm the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the LIBO Screen Rate is not available or published on a current basis and such circumstances giving rise to the Market Disruption Event continue are unlikely to be in effecttemporary; provided or
(ii) the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the LIBO Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), or
(iii) syndicated loans currently being executed, or that (A) Borrower shall not be permitted include language similar to submit any such request more than once in any 30‑day period and (B) nothing that contained in this Section 2.14, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment; provided that, for the avoidance of doubt, in connection with an amendment to this Agreement or any other Loan Document pursuant to this Section 2.14 the provisions of Section 10.05(a) shall apply but otherwise no fee shall be payable to the Administrative Agent or the failure to provide confirmation Lenders. If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the continued effectiveness Lenders to make or maintain LIBO Rate Loans shall be suspended, (to the extent of the affected LIBO Rate Loans or Interest Periods), and (y) the Adjusted LIBO Rate component shall no longer be utilized in determining the ABR. Upon receipt of such Market Disruption Event notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBO Rate Loans (to the extent of the affected LIBO Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for an ABR Borrowing (subject to the foregoing clause (y)) in the amount specified therein. Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices no event shall such LIBOR Successor Rate be less than zero for purposes of a Market Disruption Event as provided in this Section 2.14Agreement.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Alternate Rate of Interest. Subject to Section 2.27, if, prior to (a) If before the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be final and conclusive absent manifest error) either (i) that Dollar deposits in the principal amounts of the Loans comprising the applicable Borrowing are not generally available in the London interbank market or (ii) that adequate and reasonable means (including by means of an Interpolated Rate) do not exist for ascertaining the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided provided, in each case, that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give written notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and such each Eurodollar Borrowing shall be converted to or continued as onof into an ABR Loan on the last day of the then current Interest Period applicable thereto thereto.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent, the Required Lenders and Borrower may amend this Agreement to replace the LIBOR Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an ABR Borrowing Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBOR Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.
(c) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent will promptly notify Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable and its related Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Loans shall cease to be Eurodollar Loans and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowingall Loans shall convert to, such Borrowing shall be made as an and continue as, ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Loans.
Appears in 1 contract
Samples: Senior Secured Term Loan Credit Agreement (Internap Corp)
Alternate Rate of Interest. Subject to Section 2.27In the event, ifand on each occasion, that on the day two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) Eurodollar Borrowing the Administrative Agent determines (shall have determined that deposits in the principal amounts of the Loans comprising such Borrowing are not generally available in the relevant interbank market, or that the rates at which determination shall be conclusive absent manifest error) such deposits are being offered will not adequately and fairly reflect the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), thenRate, the Administrative Agent shall shall, as soon as practicable thereafter, give written, fax or electronic mail notice thereof of such determination to the Borrower Borrowers and the applicable Lenders by telephoneLenders. In the event of any such determination, facsimile transmission or PDF attachment and subject to an email as promptly as practicable thereafter and the following paragraphs of this Section 2.08, until the Administrative Agent notifies shall have advised the Borrower Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist, (ia) any Interest Election Request that requests the conversion of request by any applicable Borrower for a Eurodollar Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing pursuant to Section 2.03 shall be ineffective and such Borrowing shall deemed to be converted to or continued as onof the last day of the Interest Period applicable thereto as a request for an ABR Borrowing and (iib) if any request by any Borrower for a Eurodollar Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing pursuant to Section 2.10 shall be made as deemed a request for an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that Each determination by the Administrative Agent request under this Section 2.08 shall be conclusive absent manifest error. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be made in good faith and shall be conclusive absent manifest error), or the Required Lenders notify the Administrative Agent (with a copy to confirm the Borrowers delivered pursuant to Section 9.01) that the Required Lenders have determined, that:
(a) adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or LIBO Rate, as applicable for any requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances giving rise are unlikely to be temporary; or
(b) the supervisor for the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement or publication of information identifying a specific date after which the LIBOR Screen Rate, the LIBO Rate or the Adjusted LIBO Rate shall no longer be made available, or used for determining the interest rate of loans, then, after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrowers may amend this Agreement to replace the LIBOR Screen Rate with an alternate benchmark rate (including any mathematical or other adjustments to the Market Disruption Event continue benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in the United States in lieu of the LIBOR Screen Rate (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (but, for the avoidance of doubt, such related changes shall not include a reduction in the Applicable Percentage); provided, that if such alternate rate of interest would be less than 1.00%, such rate shall be deemed to be in effect1.00% for all purposes of this Agreement; provided further, that (A) Borrower shall not be permitted notwithstanding anything to submit the contrary in Section 9.08, any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent notice that such Required Lenders do not accept such amendment. If no LIBOR Successor Rate has been determined and the circumstances under clause (a) or (b) above exist, the obligation of the Lenders to make or maintain Eurodollar Term Loans shall be suspended (to the extent of the affected Loans or Interest Periods). Upon receipt of such notice, the applicable Borrower may revoke any pending request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 for a Eurodollar Borrowing or the failure conversion to provide confirmation or continuation of Eurodollar Term Loans (to the extent of the continued effectiveness of affected Eurodollar Term Loans or Interest Periods) or, failing that, will be deemed to have converted such Market Disruption Event shall request into a request for ABR Loans in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14amount specified therein.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Alternate Rate of Interest. (a) Subject to clauses (b), (d), (e), (f) and (g) of this Section 2.272.14, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent Agent, after consultation with the Borrower, determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate Term SOFR or the LIBO RateTerm Term SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate Term SOFR or the LIBO RateTerm Term SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR SOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing (in the case of SOFR Borrowings), and (ii) if any Borrowing Request requests a EurocurrencySOFR SOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During Borrowing (in the case of SOFR Borrowings).
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in which respect of any setting of the then-current Benchmark, then (x) if a Market Disruption Event Benchmark Replacement is determined in effectaccordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, Borrower may request that such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m., Local Time, on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent request has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders Lenders.
(c) [Reserved].
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Borrower, to confirm that the circumstances giving rise make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (Bv) nothing contained in this Section 2.14 the commencement or the failure to provide confirmation conclusion of the continued effectiveness of such Market Disruption Event shall in any way affect Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent’s , or, if applicable, any Lender (or Required group of Lenders’ right ) pursuant to provide this Section 2.14, including any additional notices determination with respect to a tenor, rate or adjustment or of a Market Disruption Event the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as provided in expressly required pursuant to this Section 2.14.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Bxxxxxxxx has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent (after consultation with the Borrower) may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (after consultation with the Borrower) may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) Eurodollar Borrowing the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining no LIBOR Rate is published on the Adjusted LIBO Rate Reuters Page LIBOR01 (or the LIBO RateTerm SOFR any successor or Term SOFR, as applicable, replacement page) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and until thereafter. Until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) each Eurodollar Loan made by the Lenders shall be converted into an ABR Loan at the end of the then current Interest Period, (B) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiC) if any Borrowing Request Notice requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) If it shall be unlawful for any period Lender to make, maintain or fund any Eurodollar Loan as contemplated by this Agreement or for any Participant to make, maintain or fund its participation interest in which a Market Disruption Event is in effectany Eurodollar Loan, Borrower may request that then such Lender or such Participant shall forthwith give notice thereof to the Administrative Agent request and the Required Lenders Borrower describing such illegality. Effective immediately upon the giving of such notice, the obligation of such Lender to confirm that make Eurodollar Loans shall be suspended for the circumstances giving rise duration of such illegality and, if and when such illegality ceases to exist, such suspension shall cease, and such Lender or such Participant shall notify the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit Administrative Agent and the Borrower. If any such request more than once in change shall make it unlawful for any 30‑day period and (B) nothing contained in this Section 2.14 Lender or any Participant to maintain any outstanding Eurodollar Loan as a Eurodollar Loan, such Lender or such Participant shall, upon the failure to provide confirmation of the continued effectiveness happening of such Market Disruption Event shall in any way affect event, notify the Administrative Agent’s , and such Loan shall immediately, or Required Lenders’ right if permitted by applicable law, rule, regulation, order, decree, interpretation, request or directive, at the end of the then current Interest Period for such Eurodollar Loan, convert from a Eurodollar Loan into an ABR Loan (it being understood and agreed that the Borrower shall be fully liable for any loss or expense incurred by the Lenders and/or the Participant pursuant to provide any additional notices of a Market Disruption Event as provided Section 2.09 in this Section 2.14connection with such conversion).
Appears in 1 contract
Samples: Loan Agreement (Teva Pharmaceutical Industries LTD)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.272.14, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing (in the case of Eurocurrency Borrowings), and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During Borrowing (in the case of Eurocurrency Borrowings).
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, if a Benchmark Transition Event or an Early Opt-in which Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Market Disruption Event Benchmark Replacement is determined in effectaccordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, Borrower may request that such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent request has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders to confirm that the circumstances giving rise Lenders.
(c) Notwithstanding anything to the Market Disruption contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event continue and its related Benchmark Replacement Date have occurred prior to be the Reference Time in effectrespect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that that, this clause (Ac) Borrower shall not be permitted effective unless the Administrative Agent has delivered to submit any such request more than once the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (Bv) nothing contained in this Section 2.14 the commencement or the failure to provide confirmation conclusion of the continued effectiveness of such Market Disruption Event shall in any way affect Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent’s , or, if applicable, any Lender (or Required group of Lenders’ right ) pursuant to provide this Section 2.14, including any additional notices determination with respect to a tenor, rate or adjustment or of a Market Disruption Event the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as provided in expressly required pursuant to this Section 2.14.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Borrowing of, conversion to or continuation of Eurocurrency Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(a) the Administrative Agent determines (which determination shall be conclusive presumed correct absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders (or, (i) in the case of a Eurocurrency Competitive Loan, the Lender that is required to make such Loan or (ii) in the Adjusted LIBO Rate case of a Revolving Designated Currency Loan or Revolving Yen Loan, as the LIBO RateTerm SOFR case may be, Designated Currency Lenders or Term SOFRYen Lenders, as applicable, having Designated Currency Commitments or Yen Commitments, as applicable, representing at least 51% of the Designated Currency Commitments or Yen Commitments, as applicable, at such time) that the LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period Period; or
(each c) in the case of clauses a Multicurrency Borrowing, the Administrative Agent determines (awhich determination shall be presumed correct absent manifest error) and (b)that deposits in the applicable currency are not generally available, a “Market Disruption Event”), then, or cannot be obtained by the Multicurrency Lenders in the applicable market; then the Administrative Agent shall give notice thereof to the Borrower Company and the Lenders or the applicable Multicurrency Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Company and the Lenders or the applicable Multicurrency Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective ineffective, and such any Eurocurrency Borrowing shall so requested to be converted to or continued as onof shall, at the option of the Company, be repaid in full on the last day of the Interest Period applicable thereto as thereto, or be converted to an ABR Borrowing denominated in dollars (and in the case of a Multicurrency Borrowing, such conversion shall be made at the Exchange Rate determined by the Administrative Agent on the last day of the then current Interest Period with respect thereto), (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Revolving Borrowing (other than a Multicurrency Borrowing), such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period Borrowing and (Biii) nothing contained in this Section 2.14 any request by any Borrower for a Eurocurrency Competitive Borrowing or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.a
Appears in 1 contract
Alternate Rate of Interest. Subject (i) IfSubject to and in any event except as set forth in Section 2.271.08, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBOR Advance:
(aA) the Administrative Agent reasonably determines (which determination shall be conclusive presumed correct absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bB) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans Advances included in such Borrowing LIBOR Advance for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give written notice (by facsimile transmission or electronic transmission (in .pdf format)) thereof to the Borrower Borrowers and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist, (ix) any Interest Election Request that requests request for the conversion Conversion of any applicable Borrowing a Base Rate Advance to, or continuation of any such Borrowing LIBOR Advance as, a EurocurrencySOFR Borrowing LIBOR Advance shall be ineffective and ineffective, and, in the case of any request for the continuation of a LIBOR Advance, such Borrowing LIBOR Advance shall be converted to or continued as onof on the last day of the then current Interest Period applicable thereto as be converted to an ABR Borrowing Base Rate Advance and (iiy) if any Notice of Borrowing Request requests a EurocurrencySOFR BorrowingLIBOR Advance, such Borrowing shall be made as an ABR Borrowing. During a Base Rate Advance.
(ii) Notwithstanding anything to the contrary in this Agreement or any period other Loan Documents but subject to and in which a Market Disruption Event is any event except as set forth in effectSection 1.08, Borrower may request that if the Administrative Agent request determines (which determination shall be conclusive absent manifest error), or the Required Lenders to confirm that notify the circumstances giving rise Administrative Agent (with a copy to the Market Disruption Event continue to be in effect; provided Borrowers) that they have determined, that:
(A) Borrower shall adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for any requested Interest Period, including, without limitation, because the Adjusted LIBO Rate or the LIBO Rate, as applicable, is not available or published on a current basis and such circumstances are unlikely to be permitted to submit any such request more than once in any 30‑day period and temporary; or
(B) nothing contained in this Section 2.14 the supervisor for the administrator of the Adjusted LIBO Rate or the failure LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Adjusted LIBO Rate or the LIBO Rate, as applicable, shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”),, then, after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrowers may amend this Agreement to provide confirmation replace the Adjusted LIBO Rate or the LIBO Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in the United States in lieu of the continued effectiveness Adjusted LIBO Rate or the LIBO Rate, as applicable (any such proposed rate, a “LIBO Successor Rate”), together with any proposed LIBO Successor Rate Conforming Changes (but, for the avoidance of doubt, such related changes shall not include a reduction in the Applicable Margin); provided, that if such alternate rate of interest would be less than zero (or 1% during the Restricted Period), such rate shall be deemed to be zero (or 1% during the Restricted Period) for purposes of this Agreement, and, notwithstanding anything to the contrary in Section 9.01, any such amendment shall become effective at 5:00 P.M. (New York City time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers unless, prior to such time, the Lenders comprising the Required Lenders have delivered to the Administrative Agent notice that such Required Lenders do not accept such amendment. If no LIBO Successor Rate has been determined and the circumstances under clause (A) above exist, the obligation of the Lenders to make or maintain LIBOR Advances shall be suspended, (to the extent of the affected LIBOR Advances or Interest Periods). Upon receipt of such Market Disruption Event shall notice, any Borrower may revoke any pending request for a LIBOR Advance or, conversion to or continuation of LIBOR Advances (to the extent of the affected LIBOR Advances or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Advances in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14amount specified therein.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if(a) If, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loanany LIBOR Borrowing:
(ai) the Administrative Agent determines shall have reasonably determined (which determination shall be conclusive absent manifest errorand binding upon the Borrower) that that, by reason of circumstances affecting the relevant interbank market, adequate and reasonable means do not exist for ascertaining the Adjusted LIBO LIBOR Rate (including because the Screen Rate is not available or the LIBO RateTerm SOFR or Term SOFR, as applicable, published on a current basis) for such Interest Period; , provided that no Benchmark Transition Event or Early Opt- In Election shall have occurred at such time; time or for such Interest Period, or
(bii) the Administrative Agent is advised by shall have received notice from the Required Lenders that the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making making, funding or maintaining their LIBOR Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, then the Administrative Agent shall give written notice thereof (or telephonic notice, promptly confirmed in writing) to the Borrower and to the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly soon as practicable thereafter and until thereafter. Until the Administrative Agent notifies shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion obligations of any applicable Borrowing to, the Lenders to make LIBOR Loans or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing to continue or convert outstanding Loans as or into LIBOR Loans shall be ineffective suspended and (ii) all such Borrowing affected Loans shall be converted to or continued as onof into ABR Loans on the last day of the then current Interest Period applicable thereto as an ABR unless the Borrower prepays such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative Agent at least one (1) Business Day before the date of any LIBOR Borrowing and (ii) if any for which a Committed Loan Notice has previously been given that it elects not to borrow, continue or convert to a LIBOR Borrowing Request requests a EurocurrencySOFR Borrowingon such date, then such Revolving Borrowing shall be made as, continued as or converted into an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise .
(b) Notwithstanding anything to the Market Disruption Event continue contrary herein or in any other Loan Document (and any Master Agreement shall be deemed not to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in a “Loan Document” for purposes of this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.3.,3(b):
Appears in 1 contract
Samples: Credit Agreement
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBOR Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate (including because the applicable screen rate is not available or the LIBO RateTerm SOFR or Term SOFR, as applicablepublished on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR LIBOR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing ineffective, and (iiB) if any Borrowing Request requests a EurocurrencySOFR LIBOR Borrowing, such Borrowing shall be made as an ABR a BR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that .
(i) If the Administrative Agent request determines (which determination shall be final and conclusive, absent manifest error) that either (a)
(i) the circumstances set forth in clause (a)(i) have arisen and are unlikely to be temporary, or (ii) the circumstances set forth in clause (a)(i) have not arisen but the applicable supervisor or administrator (if any) of the LIBO Screen Rate or a Government Authority having jurisdiction over the Administrative Agent has made a public statement identifying the specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans (either such date, a “LIBOR Termination Date”), or (b) a rate other than the LIBO Screen Rate has become a widely recognized benchmark rate for newly originated loans in US Dollars in the U.S. market, then the Administrative Agent may (in consultation with the Borrower) choose a replacement index for the LIBO Screen Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time and make adjustments to applicable margins and related amendments to this Agreement as referred to below such that, to the extent practicable, the all-in interest rate based on the replacement index will be substantially equivalent to the all-in LIBO Rate-based interest rate in effect prior to its replacement.
(ii) The Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect the replacement index, the adjusted margins and such other related amendments as may be appropriate, in the discretion of the Administrative Agent, for the implementation and administration of the replacement index-based rate. Notwithstanding anything to the contrary in this Agreement or the other Credit Documents (including, without limitation, Section 9.02), such amendment shall become effective without any further action or consent of any other party to this Agreement at 5:00 p.m. Pittsburgh, Pennsylvania time on the tenth (10th) Business Day after the date a draft of the amendment is provided to the Lenders, unless the Administrative Agent receives, on or before such tenth (10th) Business Day, a written notice from the Required Lenders stating that such Lenders object to confirm that such amendment.
(iii) Selection of the circumstances giving rise replacement index, adjustments to the Market Disruption Event applicable margins, and amendments to this Agreement (i) will be determined with due consideration to the then-current market practices for determining and implementing a rate of interest for newly originated loans in the United States and loans converted from the LIBO Rate based rate to a replacement index-based rate, and (ii) may also reflect adjustments to account for (x) the effects of the transition from the LIBO Rate to the replacement index and (y) yield- or risk-based differences between the LIBO Rate and the replacement index.
(iv) Until an amendment reflecting a new replacement index in accordance with this Section 2.13(b) is effective, each advance, conversion and renewal of a LIBOR Loan will continue to be in effectbear interest with reference to the LIBO Rate; provided however, that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect if the Administrative Agent’s or Required Lenders’ right Agent determines (which determination shall be final and conclusive, absent manifest error) that a LIBOR Termination Date has occurred, then following the LIBOR Termination Date, all LIBOR Loans shall automatically be converted to provide BR Loans until such time as an amendment reflecting a replacement index and related matters as described above is implemented.
(v) Notwithstanding anything to the contrary contained herein, if at any additional notices time the replacement index is less than zero, at such times, such index shall be deemed to be zero for purposes of a Market Disruption Event as provided in this Section 2.14Agreement.
Appears in 1 contract
Alternate Rate of Interest. Subject (a) If for any reason with respect to Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) the Administrative Agent determines that has not yet commenced, Lender shall have determined (which determination shall be conclusive and binding upon Borrower absent manifest error) that (a) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFRLIBOR Rate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
, or (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders Lender of making or and maintaining their Loans included in such any LIBOR Borrowing hereunder for such any proposed Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, the Administrative Agent then Lender shall give Borrower notice thereof to the Borrower and the applicable Lenders by telephone, telephone or facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and thereupon, (i) any Rate Selection Notice previously given by Borrower designating an Adjusted LIBOR Rate which has not commenced as of the date of such notice from Lender shall be deemed for all purposes hereof to be of no force and effect, as if never given, and (ii) until the Administrative Agent notifies the Lender shall notify Borrower and the Lenders that the circumstances giving rise to such notice no from Lender longer exist, each Rate Selection Notice requesting an Adjusted LIBOR Rate shall be deemed a request for a CBFR Borrowing, and each outstanding LIBOR Borrowing then in effect shall be converted, without any notice to or from Borrower, upon the termination of the Interest Period then in effect to a CBFR Borrowing.
(b) If, after the date of this Agreement, any Change in Law shall at any time make it unlawful or impracticable for Lender to permit the establishment of or to maintain any LIBOR Borrowing, the commitment of Lender to establish or maintain the LIBOR Borrowings affected by such adoption or change shall forthwith be canceled and Borrower shall forthwith, upon demand by Lender to Borrower, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any convert such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted LIBOR Borrowings to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and CBFR Borrowings; (ii) if pay all accrued and unpaid interest to date on the amount so converted; and (iii) pay any Borrowing Request amounts required under Section 2.08 below. All present and subsequent requests a EurocurrencySOFR Borrowing, such Borrowing for LIBOR Borrowings by Borrower shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue deemed to be in effect; provided that (A) Borrower shall not be permitted requests for CBFR Borrowings with respect to submit any Lender for all LIBOR Borrowings affected by such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 adoption or change until such adoption or change no longer affects the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14LIBOR Borrowings for Lender.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing denominated in any currency:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) deposits (whether in US Dollars or any Designated Foreign Currency) are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurocurrency Borrowing or (ii) adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such timePeriod (in each case, an “Impacted Loan”); or
(b) the Administrative Agent is advised by a majority in interest of the Required Lenders that would participate in such Borrowing (the Adjusted “Affected Lenders”) that the LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the applicable Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the applicable Borrower and the applicable Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Revolving Committed Borrowing denominated in such currency to, or continuation of any Revolving Committed Borrowing denominated in such Borrowing currency as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective ineffective, and any Eurocurrency Borrowing denominated in such Borrowing currency that is requested to be continued shall be converted to or continued as onof repaid on the last day of the then current Interest Period applicable thereto as an ABR Borrowing and thereto, (ii) if any Borrowing Request requests for a EurocurrencySOFR Borrowing, Eurocurrency Revolving Committed Borrowing denominated in such Borrowing currency shall be made as an ABR Borrowingineffective and (iii) in the case of determining the LIBO Rate component of the Alternate Base Rate, the utilization of the LIBO Rate component in determining the Alternate Base Rate shall be suspended. During Upon receipt of such notice, any period in which a Market Disruption Event is in effect, Borrower may revoke any pending request that for a Eurocurrency Borrowing in the affected currency or currencies (to the extent of the affected Eurocurrency Borrowing or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans in the amount specified therein. Notwithstanding the foregoing, if the Administrative Agent request has made the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained determination described in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect section, the Administrative Agent’s , in consultation with the Borrowing Agent and the Affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under this Section, (2) the Administrative Agent or Required Lenders’ right the Affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to provide such Lenders of funding the Impacted Loans, or (3) any additional notices Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of a Market Disruption Event as provided in this Section 2.14interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
Appears in 1 contract
Samples: Five Year Credit Agreement (Edwards Lifesciences Corp)
Alternate Rate of Interest. Subject to clause (c) of this Section 2.272.12, if, ifIf prior to the commencement of any the Interest Period for a Eurocurrency Borrowingany any EurocurrencyAdjusted Term SOFR LoanBorrowing or at any time for any Daily Compounded SOFR Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR LIBOR RateBenchmark for such Loan or Term SOFR, as (if applicable, for ) such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as Rate forBenchmark for such Loan and (if applicable, for ) such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their respective Loans included in such Borrowing for xxxxxx, if applicable, such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email as e-mail promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iix) any obligation of such Lender (A) to make or continue SOFR Borrowings or (B) to convert ABR Borrowings to SOFR Borrowings shall be suspended, (y) any Interest Election Request that requests the conversion of any applicable Borrowing to, or the continuation of any such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing (unless prepaid) shall be continued as, or converted to or continued as onof the last day of the Interest Period applicable thereto as to, an ABR Borrowing and (iiiiz) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During Furthermore, if any period in which a Market Disruption Event EurocurrencySOFR Loan is in effect, Borrower may request that outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent request the Required Lenders referred to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 2.12(a) with respect to the Adjusted LIBO Rate or the failure LIBO RateBenchmark applicable to provide confirmation such EurocurrencySOFR Loan, then (I) in the case of an Adjusted Term SOFR Loan, on the last day of the continued effectiveness Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day)and (II) in the case of a Daily Compounded SOFR Loan, immediately, such Market Disruption Event Loan shall in any way affect be converted by the Administrative Agent’s Agent to, and shall constitute, an ABR Loan on such day. If the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that Daily Compounded SOFR or Required Lenders’ right Adjusted Term SOFR cannot be determined pursuant to provide the applicable definition thereof, the Alternate Base Rate shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, as applicable, together with any additional notices of a Market Disruption Event as provided in this amounts required pursuant to Section 2.142.13.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Capital Southwest Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, (i) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing of Eurodollar Rate Loans:
(aA) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Base Eurodollar Rate for a Loan or for the LIBO RateTerm SOFR or Term SOFR, as applicable, for such applicable Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bB) the Administrative Agent is advised by the Required Requisite Lenders that the Adjusted LIBO Base Eurodollar Rate for a Loan in the applicable currency or for the LIBO RateTerm SOFR or Term SOFR, as applicable, for such applicable Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone promptly followed in writing or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i1) any Interest Election Request Notice of Conversion/Continuation that requests the conversion of any applicable Borrowing Eurodollar Rate Loans to, or continuation of any such Borrowing asEurodollar Rate Loans for the applicable Interest Period, a EurocurrencySOFR Borrowing as the case may be, shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii2) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During a Borrowing of Base Rate Loans.
(ii) Notwithstanding anything to the contrary in this Agreement or any period in which a Market Disruption Event is in effectother Loan Documents, Borrower may request that if the Administrative Agent request determines (which determination shall be conclusive absent manifest error), or the Required Borrower or Requisite Lenders notify the Administrative Agent (with, in the case of the Requisite Lenders, a copy to confirm the Borrower) that the Borrower or Requisite Lenders (as applicable) have determined, that:
(iii) adequate and reasonable means do not exist for ascertaining the Base Eurodollar Rate for any requested Interest Period, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances giving rise to the Market Disruption Event continue are unlikely to be in effecttemporary; provided that or
(A) Borrower the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Base Eurodollar Rate or the LIBOR Screen Rate shall not no longer be permitted to submit any made available, or used for determining the interest rate of loans (such request more than once in any 30‑day period and specific date, the “Scheduled Unavailability Date”), or
(B) nothing syndicated loans currently being executed, or that include language similar to that contained in this Section 2.14 Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Base Eurodollar Rate, then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice , as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Base Eurodollar Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar Dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower provided that all Lenders deliver written notice to the Administrative Agent that they accept such amendment prior to such time. If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the failure to provide confirmation Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the continued effectiveness Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) the Daily LIBOR Rate component shall no longer be utilized in determining the Base Rate. Upon receipt of such Market Disruption Event notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein. Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices no event shall such LIBOR Successor Rate be less than 0.75% for purposes of a Market Disruption Event as provided in this Section 2.14.Agreement. As used above:
Appears in 1 contract
Samples: Restructuring Support Agreement (Washington Prime Group, L.P.)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanCD Borrowing, a EURIBOR Borrowing or a LIBOR Borrowing:
(a) the Administrative Agent Agent:
(i) determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted CD Rate, the Adjusted Eurodollar LIBO Rate, the Adjusted Sterling LIBO Rate or the LIBO RateTerm SOFR or Term SOFRAdjusted EURIBOR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted CD Rate, the Adjusted Eurodollar LIBO Rate Rate, the Adjusted Sterling LIBO Rate, or the LIBO RateTerm SOFR or Term SOFRAdjusted EURIBOR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Company, the applicable Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Company, the applicable Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing CD Borrowing, a EURIBOR Borrowing, or a LIBOR Borrowing, as applicable, shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and ineffective, (iiB) if any Borrowing Request requests a EurocurrencySOFR CD Borrowing or a LIBOR Borrowing, as applicable, if such Borrowing is to be denominated in Dollars, it shall be made as an ABR Borrowing. During Borrowing and (C) any period request for a EURIBOR or LIBOR Borrowing denominated in which a Market Disruption Event is in effect, Borrower may request an Alternate Currency shall be ineffective; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice do not affect all such Types of Borrowings, then the Market Disruption Event continue other unaffected Types of Borrowings shall be permitted.
(b) If, in relation to any Borrowing or proposed Borrowing to be denominated in effect; provided an Alternate Currency, and with respect to any Interest Period relative thereto:
(i) the Administrative Agent shall have received notification from a Lender or Lenders whose participations in such Borrowing constitute at least 50% by value of such Borrowing, that by reason of circumstances affecting the London interbank market or the Euro-zone interbank market, as applicable:
(A) Borrower shall deposits in the applicable Alternate Currency the same period as such Interest Period will not be permitted readily available to submit any them in the London interbank market or the Euro-zone interbank market, as applicable, in sufficient amounts in the ordinary course of business to fund their respective Loans in such request more than once in any 30‑day period and Borrowing for such Interest Period; or
(B) nothing contained while such deposits are so available, the cost of such deposits exceeds the applicable LIBO Rate as determined in this Section 2.14 relation to such Borrowing for such Interest Period; or
(ii) the Administrative Agent shall have received notification from any Lender (an "Affected Lender") that by reason of any change in or the failure introduction (or re-introduction) of or any change in the interpretation, administration or application of applicable law or regulation (in each such case after the date hereof or, if later, the date on which the Affected Lender became a part to provide confirmation this Agreement) it is unable to fund its Loan in such Borrowing during such Interest Period by deposit(s) in the applicable Alternate Currency obtained in the London interbank market or the Euro-zone interbank market, as applicable, in the ordinary course of business; the Administrative Agent shall promptly give written notice of such determination or notification to the Company and each of the continued effectiveness Lenders.
(c) After the giving of any notice by the Administrative Agent pursuant to Section 2.11(b) to the effect that it has received notification in accordance with Section 2.11(b)(i)(A) or 2.11(b)(ii), no Lender or, as the case may be, no Affected Lender shall be obliged to participate in the Borrowing to which such Market Disruption Event notification relates unless such Borrowing is already then outstanding. The giving of any notice by the Administrative Agent pursuant to Section 2.11(b)(i)(B) shall in not relieve any way affect Lender of any obligation it may have under this Agreement to make a Loan (including any Loan for which a Borrowing Request was given prior to such notice by the Administrative Agent’s ).
(d) During the period of 15 days after the giving of any notice by the Administrative Agent pursuant to Section 2.11(b), the Administrative Agent (in consultation with the Lenders or Required Lenders’ right the Affected Lender) shall negotiate with the Company in good faith with a view to provide ascertaining whether a substitute basis (a ASubstitute Basis@) may be agreed for the making of further Borrowings and/or the maintaining of any additional notices existing Borrowings by the Lenders or such Affected Lender (as the case may be) to which such notice by the Administrative Agent related for the Interest Period(s) applicable to those Borrowings. If a Substitute Basis is agreed by all the Lenders or by the Affected Lender (as the case may be) and the Company it shall apply in accordance with its terms from the commencement of such Interest Period. The Administrative Agent shall not agree to any Substitute Basis on behalf of any Lender or Affected Lender without the prior consent of that Lender or Affected Lender (as the case may be).
(e) If a Market Disruption Event Substitute Basis is not so agreed by the Company and all the Lenders or the Affected Lender (as provided the case may be) by the end of such 15 day period, each Lender's or Affected Lender's then existing Loan or Loans to which the notice by the Administrative Agent related shall bear interest during the current Interest Period relative thereto at the rate which is the sum of (a) the per annum rate certified by such Lender or Affected Lender to be its cost of funds (from such sources as it may reasonably select out of those sources then available to it) for such Interest Period in relation to such Borrowing multiplied by the Reserve Rate, plus (b) the Associated Costs Rate, plus (c) the Applicable Rate.
(f) So long as any Substitute Basis is in force or Section 2.11(e) shall apply in relation to any Borrowing, the Administrative Agent, in consultation with the Company and each Lender (or, if applicable, Affected Lender) shall from time to time, but not less often then monthly, review whether or not the circumstances referred to in Section 2.11(b) still prevail with a view to returning to the normal interest provisions of this Section 2.14Agreement.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement first day of any Interest Period for a Eurocurrency Borrowingany SOFR LoanPeriod:
(ai) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means (including, without limitation, by means of an Interpolated Rate) do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by shall have received notice from the Required Majority Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile fax or other electronic transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective (and such Borrowing shall be automatically converted to or continued as onof into ABR Loans on the last day of the applicable Interest Period applicable thereto as an ABR Borrowing and Period), (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) that (i) the Required circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 12.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within ten Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Majority Lenders to confirm stating that the Majority Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances giving rise described in clause (ii) of the first sentence of this Section 3.03(b), only to the Market Disruption Event continue extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (y) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be in effect; provided that zero for the purposes of this Agreement.”
(Aa) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (BSection 12.02(b) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness Credit Agreement is hereby amended by replacing the first instance of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right word “Neither” with the following clause: “Subject to provide any additional notices of a Market Disruption Event as provided in this Section 2.143.03(b) and Section 12.02(c) below, neither”.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27(a) In the event, ifand on each occasion, that on the day two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) Eurodollar Borrowing the Administrative Agent determines (shall have determined that dollar deposits in the principal amounts of the Loans comprising such Borrowing are not generally available in the London interbank market, or that the rates at which determination shall be conclusive absent manifest error) such dollar deposits are being offered will not adequately and fairly reflect the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or Rate, the LIBO RateTerm SOFR or Term SOFRAgent shall, as applicablesoon as practicable thereafter, give written or telecopy notice of such determination to the Borrowers and the Lenders. In the event of any such determination, any request by a Borrower for such Interest Period; provided that no Benchmark Transition Event a Eurodollar Borrowing pursuant to Section 2.03 shall, until the Agent shall have occurred at such time; or
(b) advised the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, be deemed to be a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as request for an ABR Borrowing. During Each determination by the Agent hereunder shall be conclusive absent manifest error.
(b) In the event, and on each occasion, that on or before the day on which the Adjusted CD Rate for a CD Borrowing is to be determined the Agent shall have determined that such Adjusted CD Rate cannot be determined for any period reason, including the inability of the Agent to obtain sufficient bids in which a Market Disruption Event is in effectaccordance with the terms of the definition of Fixed CD Rate, Borrower may request or the Agent shall determine that the Administrative Adjusted CD Rate for such CD Borrowing will not adequately and fairly reflect the cost to any Lender of making or maintaining its CD Loan during such Interest Period, the Agent shall, as soon as practicable thereafter, give written or telecopy notice of such determination to the Borrowers and the Lenders. In the event of any such determination, any request by a Borrower for a CD Borrowing pursuant to Section 2.03 shall, until the Required Agent shall have advised the Borrowers and the Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue such notice no longer exist, be deemed to be in effect; provided that (A) Borrower a request for an ABR Borrowing. Each determination by the Agent hereunder shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14conclusive absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Dillards Inc)
Alternate Rate of Interest. Subject to Section 2.272.20, ifin the event, and on each occasion, that on the date that is two (2) Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR #4875-3210-4001v1 Loan:
(a) , the Administrative Agent determines shall have reasonably determined (which determination shall be conclusive and binding upon the Borrowers absent manifest error) that adequate and reasonable means do not exist for ascertaining the applicable Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, the Administrative Agent shall shall, as soon as practicable thereafter, give written or facsimile notice thereof of such determination to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower Borrowers and the Lenders that and, until the circumstances giving rise to such notice no longer exist, (i) the Borrowers may revoke any Interest Election Request that requests the conversion request for a Borrowing of SOFR Loans and, failing that, any applicable request by a Borrower for a Borrowing toof SOFR Loans hereunder (including pursuant to a refinancing with SOFR Loans and including any request to continue, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing to convert to SOFR Loans) shall be ineffective deemed a request for a Borrowing of ABR Loans and such Borrowing (ii) any outstanding SOFR Loans hereunder shall be converted to or continued as onof ABR Loans at the last day end of the then current Interest Period Period.
(a) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrowers may amend this Agreement to replace LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrowers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBO Rate with a Benchmark Replacement pursuant to this Section 2.09 will occur prior to the applicable thereto Benchmark Transition Start Date.
(b) In connection with the implementation of a Benchmark Replacement, the Administrative Agent, with the written consent of the Borrowers, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(c) The Administrative Agent will promptly notify the Borrowers and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as an ABR Borrowing applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) if the implementation of any Borrowing Request requests a EurocurrencySOFR BorrowingBenchmark Replacement, such Borrowing shall (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that by the Administrative Agent or Required Lenders, as applicable, in each case with the consent of the Borrowers pursuant to this Section 2.09, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.09.
(d) Upon receipt by the Borrowers of notice of the commencement of a Benchmark Unavailability Period, (a) the Borrowers may revoke any request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue for a Borrowing of Eurodollar Term Loans to be in effect; provided that (A) made during any Benchmark Unavailability Period and, failing that, the Borrower shall not will be permitted deemed to submit have converted any such request more than once in any 30‑day period into a request for a Borrowing of Term Loans bearing interest at a rate determined by reference to the Alternate Base Rate and (Bb) nothing contained in this Section 2.14 or all calculations of interest by reference to LIBO Rate hereunder shall instead be made by reference to the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Alternate Base Rate.
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate, the Adjusted EURIBOR Rate or the LIBO RateTerm SOFR or Term SOFREURIBOR Rate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or;
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate, the LIBO Rate, the Adjusted EURIBOR Rate or the LIBO RateTerm SOFR or Term SOFREURIBOR Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period Period; or
(each of clauses (ac) and (b), the Administrative Agent is advised by a “Market Disruption Event”), then, Lender that it has become unlawful for such Lender to honor its obligation to make or maintain Eurocurrency Loans hereunder; then the Administrative Agent shall give notice thereof to the Borrower and to the applicable Lenders by telephoneLenders, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted (in the case of paragraph (c) above, only as to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and affected Lender), (ii) if any Borrowing Request requests a EurocurrencySOFR BorrowingEurocurrency Borrowing denominated in Dollars, such Borrowing shall be made as an ABR Borrowing. During Borrowing and Borrowing Requests for any period affected Alternative Currency Loans shall not be effective (in which a Market Disruption Event the case of paragraph (c) above, only as to the affected Lender) and (iii) if in accordance with paragraph (c) above any Lender determines that it is in effectno longer lawful for such Lender or its applicable lending office (subject to Section 2.19(a)) to maintain any existing Eurocurrency Loans, or to continue to charge interest rates based upon the LIBO Rate or the EURIBOR Rate, then, on notice thereof by such Lender to the Borrower may request that through the Administrative Agent, any obligation of such Lender to continue Eurocurrency Loans shall be suspended until such Lender notifies the Administrative Agent request and the Required Lenders to confirm Borrower that the circumstances giving rise to such determination no longer exist and, in such event, all (x) Eurocurrency Loans of such Lender denominated in Dollars shall be converted to ABR Loans and (y) Eurocurrency Loans of such Lender denominated in any Foreign Currency shall bear interest at an alternate rate which reflects such Lender’s cost of funding such Eurocurrency Loans (as reasonably determined by the Market Disruption Event Administrative Agent) plus the Applicable Rate, in each case, either on the last day of the Interest Period thereof, if such Lender may lawfully continue to be in effectmaintain such Eurocurrency Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Loans; provided that (A) Borrower if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14permitted.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Global Trust II, Inc.)
Alternate Rate of Interest. (a) Subject to Section 2.27clauses (b), if(c), (d), (e), (f) and (g) of this Subsection 1.5, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Eurodollar Loan:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFRLIBOR Rate, as applicableapplicable (including because the LIBOR Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFRLIBOR Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Representative and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of request to convert any applicable Borrowing Loan to, or continuation of any such Borrowing Loan as, a EurocurrencySOFR Borrowing Eurodollar Loan shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request borrowing request requests a EurocurrencySOFR BorrowingEurodollar Loan, such Borrowing Loan shall be made as an ABR BorrowingLoan.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m., New York City time, on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided by the Administrative Agent to the Lenders and the Borrower Representative without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (other than as set forth in the definition of “Benchmark Replacement”) so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (other than as set forth in the definition of “Benchmark Replacement”); provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document (other than as set forth in the definition of “Benchmark Replacement”).
(e) The Administrative Agent will promptly notify the Borrower Representative and the Lenders (and in any event within five Business Days) of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, the Borrower Representative or any Lender (or group of Lenders) pursuant to this Subsection 1.5, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Subsection 1.5.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Loan borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any period Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in which a Market Disruption Event is in effect, Borrower may request that the any determination of ABR.
(h) The Administrative Agent request the Required Lenders to confirm that the circumstances giving rise and, to the Market Disruption Event continue to be extent any other party hereto shall have any consent or consultation right in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation respect of the continued effectiveness selection of such Market Disruption Event Benchmark Replacement, each such applicable party shall use commercially reasonable efforts to satisfy any applicable Internal Revenue Service guidance, including Proposed Treasury Regulation 1.1001-6 and any future guidance, to the effect that a Benchmark Replacement will not result in a deemed exchange for U.S. federal income tax purposes of any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in Loan under this Section 2.14Agreement.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, (a) [Reserved]:
(b) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request Committed Loan Notice that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR SOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing Borrowing, and (ii) if any Borrowing Request Committed Loan Notice requests a EurocurrencySOFR SOFR Borrowing, such Borrowing shall be made as an ABR Borrowing.
(c) Upon the occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date prior to any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, solely if the Administrative Agent and the Borrower determine that (x) the Relevant Governmental Body has not made any selection or recommendation for a replacement benchmark rate or the mechanism for determining such a rate and (y) there is no evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark, so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.17.
(f) At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing of, conversion to or continuation of Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request for a SOFR Loan into a request for a Borrowing of or conversion to ABR Loans. During any period Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in which any determination of ABR.
(h) Furthermore, if any Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Market Disruption Event Benchmark Unavailability Period with respect to the rate applicable to such Loan, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is in effectnot a Business Day), Borrower may request that such Loan shall be converted by the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower to, and shall not be permitted to submit any constitute an ABR Loan on such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14day.
Appears in 1 contract
Samples: Superpriority Senior Secured Debtor in Possession Credit Agreement (Revlon Consumer Products Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any the Interest Period for a Eurocurrency Borrowingany any Adjusted Term SOFR LoanBorrowing or at any time for any Daily Compounded SOFR Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate Benchmark for such Loan or the LIBO RateTerm SOFR or Term SOFR, as (if applicable, for ) such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as Benchmark for such Loan and (if applicable, for ) such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their respective Loans included in such Borrowing for and, if applicable, such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email as e-mail promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (ix) any obligation of such Lender (A) to make or continue SOFR Borrowings or (B) to convert ABR Borrowings to SOFR Borrowings shall be suspended, (y) any Interest Election Request that requests the conversion of any applicable Borrowing to, or the continuation of any such Borrowing as, a EurocurrencySOFR SOFR Borrowing shall be ineffective and such Borrowing (unless prepaid) shall be continued as, or converted to or continued as onof the last day of the Interest Period applicable thereto as to, an ABR Borrowing and (iiz) if any Borrowing Request requests a EurocurrencySOFR SOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During Furthermore, if any period in which a Market Disruption Event SOFR Loan is in effect, Borrower may request that outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent request the Required Lenders referred to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or 2.12(a) with respect to the failure Benchmark applicable to provide confirmation such SOFR Loan, then (I) in the case of an Adjusted Term SOFR Loan, on the last day of the continued effectiveness Interest Period applicable to such Loan and (II) in the case of a Daily Compounded SOFR Loan, immediately, such Market Disruption Event Loan shall in any way affect be converted by the Administrative Agent’s Agent to, and shall constitute, an ABR Loan on such day. If the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that Daily Compounded SOFR or Required Lenders’ right Adjusted Term SOFR cannot be determined pursuant to provide the applicable definition thereof, the Alternate Base Rate shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, as applicable, together with any additional notices of a Market Disruption Event as provided in this amounts required pursuant to Section 2.142.13.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Capital Southwest Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm Term SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm Term SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Term Loans included in such Borrowing for such Interest Period (each of clauses clause (a) and (b), a “Market Disruption Event”), then, ; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email e-mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR SOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day 30-day period and (B) nothing contained in this Section 2.14 2.12 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.142.12. If the Required Lenders have not confirmed within 10 Business Days after request of such report from the Borrower that a Market Disruption Event has occurred, then such Market Disruption Event shall be deemed to be no longer existing.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27(a) Other than as set forth in clause (b) below, if, at least two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowingany Term SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a Term SOFR Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm Term SOFR Rate (including because the Term SOFR Reference Rate is not available or Term SOFR, as applicablepublished on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that that, the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, telecopy, facsimile transmission or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, (i) any Interest Election Request that requests the conversion of any applicable Borrowing Revolving BorrowingLoan to, or continuation of any such Borrowing Revolving BorrowingLoan as, a EurocurrencySOFR Term SOFR Borrowing and any Borrowing Request that requests a Term SOFR Revolving Borrowing shall instead be ineffective and deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that if the circumstances giving rise to such Borrowing notice affect only one Type of Borrowings, then all other Types of Borrowings shall be converted permitted. Furthermore, if any Term SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.14(a) with respect to the Adjusted Term SOFR Rate applicable to such Term SOFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.07 or continued as onof a new Borrowing Request in accordance with the terms of Section 2.03, any Term SOFR Loan shall on the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowingto such Loan, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that converted by the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower to, and shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14constitute an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Vacasa, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanLIBOR Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period; or
(c) the Administrative Agent determines in good faith (which determination shall be conclusive absent manifest error) that by reason of circumstances affecting the interbank Currency markets generally, deposits in Pound Sterling in the London interbank market are not being offered for the applicable Interest Period (each and in an amount equal to the amount of clauses (a) and (b), a “Market Disruption Event”), then, the LIBOR Loan requested by Borrower; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR LIBOR Borrowing shall be ineffective and such Borrowing shall be converted to or continued made as onof a LIBOR Loan having the last day of the shortest Interest Period applicable thereto which is not unavailable under Section 2.13(a) through Section 2.13(c), and if no Interest Period is available, as an ABR Borrowing Borrowing, and (ii) if any Borrowing Request requests a EurocurrencySOFR LIBOR Revolving Borrowing, such Borrowing shall be made as a LIBOR Loan having the shortest Interest Period which is not unavailable under Section 2.13(a) through Section 2.13(c), and if no Interest Period is available, as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request ; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the Market Disruption Event continue to other Type of Borrowings shall be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14permitted.
Appears in 1 contract
Samples: Credit Agreement (Apache Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, prior to the commencement of If at any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) time the Administrative Agent or the Borrower determines (which determination shall be conclusive absent manifest error) that (i) adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or for any requested Interest Period, including, without limitation, because the LIBO RateTerm SOFR Rate is not available or Term SOFRpublished on a current basis and such circumstances are unlikely to be temporary; or (ii) the administrator of the LIBO Rate or any applicable Governmental Authority has made a public statement identifying a specific date after which the LIBO Rate shall no longer be made available, as applicableor used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for such Interest Period; provided that no Benchmark Transition Event shall have occurred determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable; or
provided that, if such alternate rate of interest shall be less than 1.00%, such rate shall be deemed to be 1.00% for the purposes of this Agreement; provided, further, that (bi) any such successor rate shall be applied by the Administrative Agent in a manner consistent with market practice and (ii) to the extent such market practice is advised not administratively feasible for the Administrative Agent, such successor rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and the Borrower. Notwithstanding anything to the contrary in Section 9.08, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, written notice from the Required Lenders stating that such Required Lenders object to such amendment. If no such alternate rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Loans shall be suspended, (to the extent of the affected Eurodollar Loans or Interest Periods), and (y) the Adjusted LIBO Rate or component shall no longer be utilized in determining the LIBO RateTerm SOFR or Term SOFR, as applicable, for Alternate Base Rate. Upon receipt of such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), thennotice, the Administrative Agent shall give notice thereof Borrower may revoke any pending request for a Loan of, conversion to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and such Borrowing shall be converted Eurodollar Loans (to or continued as onof the last day extent of the affected Eurodollar Loans or Interest Period applicable thereto as an Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Borrowing and Loans (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise subject to the Market Disruption Event continue to be foregoing clause (y)) in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14amount specified therein.
Appears in 1 contract
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.272.11, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Eurocurrency Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice (which may be telephonic and confirmed by facsimile or electronic communication) thereof to the HoldCo Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until thereafter. Upon receipt of such notice, the Administrative HoldCo Borrower may revoke any pending request for a Eurocurrency Borrowing, or conversion to or continuation of any Borrowing as a Eurocurrency Borrowing or, failing that, will be deemed to have converted such request into a request for an ABR Borrowing in the amount specified therein. Until the Agent notifies the HoldCo Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Borrowing Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective ineffective, and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (B) any Borrowing Request for a Eurocurrency Borrowing shall be treated as a request for an ABR Borrowing.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Agent has delivered to the Lenders and the HoldCo Borrower a Term SOFR Notice. For the avoidance of doubt, the Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Agent will promptly notify the HoldCo Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the HoldCo Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the HoldCo Borrower may revoke any request for a Eurocurrency Borrowing Request requests of, conversion to or continuation of Eurocurrency Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the HoldCo Borrower will be deemed to have converted any such request into a EurocurrencySOFR Borrowing, such request for a Borrowing shall be made as an ABR Borrowingof or conversion to Alternate Base Rate Loans. During any period in which Benchmark Unavailability Period or at any time that a Market Disruption Event tenor for the then-current Benchmark is in effectnot an Available Tenor, Borrower may request that the Administrative Agent request component of Alternate Base Rate based upon the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall then-current Benchmark or such tenor for such Benchmark, as applicable, will not be permitted to submit any such request more than once used in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation determination of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Alternate Base Rate.
Appears in 1 contract
Samples: Credit Agreement (Madison Square Garden Sports Corp.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.272.14, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period. then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request ; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the Market Disruption other Type of Borrowings shall be permitted.
(b) Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event continue or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to be the Reference Time in effectrespect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Credit Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document; provided that that, this clause (Ac) Borrower shall not be permitted effective unless the Administrative Agent has delivered to submit any such request more than once the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (Bv) nothing contained in the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.14 2.14, including any determination with respect to a tenor, rate or the failure to provide confirmation adjustment or of the continued effectiveness occurrence or non-occurrence of such Market Disruption Event shall an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any way affect the Administrative Agent’s other party to this Agreement or Required Lenders’ right any other Credit Document, except, in each case, as expressly required pursuant to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.
(f) Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Borrowing of, conversion to or continuation of Eurocurrency Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Rate Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall promptly give notice thereof to the Borrower and the applicable Lenders by telephone, telephone or facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Rate Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof an ABR Borrowing on the last day of the Interest Period applicable thereto as an ABR Borrowing thereto, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Rate Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request or the Borrower determine or the Required Lenders notify the Administrative Agent (with a copy to confirm the Borrower) that the Required Lenders have determined (which determination shall be conclusive absent manifest error) that (i) adequate and reasonable means do not exist for ascertaining the Adjusted Eurodollar Rate for any requested Interest Period, including, without limitation, because the Eurodollar Rate is not available or published on a current basis and such circumstances giving rise are unlikely to be temporary; or (ii) the administrator of the Eurodollar Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Eurodollar Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Market Disruption Event continue Adjusted Eurodollar Rate, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be in effectzero for the purposes of this Agreement; provided provided, further, that (Ai) Borrower shall not be permitted to submit any such request more than once successor rate shall be applied by the Administrative Agent in any 30‑day period a manner consistent with market practice and (Bii) nothing contained in this Section 2.14 or to the failure to provide confirmation of the continued effectiveness of extent such Market Disruption Event shall in any way affect market practice is not administratively feasible for the Administrative Agent’s , such successor rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and the Borrower. Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, written notice from the Required Lenders’ right Lenders stating that such Required Lenders object to provide such amendment. If no such alternate rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Adjusted Eurodollar Rate Loans shall be suspended, (to the extent of the affected Adjusted Eurodollar Rate Loans or Interest Periods), and (y) the Adjusted Eurodollar Rate component shall no longer be utilized in determining ABR. Upon receipt of such notice, the Borrower may revoke any additional notices pending request for a Loan of, conversion to or continuation of Adjusted Eurodollar Rate Loans (to the extent of the affected Adjusted Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a Market Disruption Event as provided request for a Borrowing of ABR Loans (subject to the foregoing clause (y)) in this Section 2.14the amount specified therein.
Appears in 1 contract
Samples: Term Loan Agreement (Concrete Pumping Holdings, Inc.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
2.07: (ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, Rate for such Interest Period, including because the Relevant Screen Rate is not available or published on a current basis); provided that no Benchmark Transition Event shall have occurred at such time; or
or (bii) the Administrative Agent is advised by the Required Majority Lenders that prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period. then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request interest election request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Term Benchmark Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request the Borrower requests a EurocurrencySOFR BorrowingTerm Benchmark Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. During Furthermore, if any period in which a Market Disruption Event Term Benchmark Advance is in effect, Borrower may request that outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent request referred to in this Section 2.07(a) with respect to a Relevant Rate applicable to such Term Benchmark Advance, then until the Required Administrative Agent notifies the Borrower and the Lenders to confirm that the circumstances giving rise to such notice no longer exist, then on the Market Disruption Event continue last day of the Interest Period applicable to be in effect; provided that such Loan (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Borrowing denominated in Dollars on such day.
(b) Notwithstanding anything to provide confirmation the contrary herein, if a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the continued effectiveness of such Market Disruption Event shall then-current Benchmark, then (x) if a Benchmark Replacement is determined in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14.accordance
Appears in 1 contract
Samples: 364 Day Term Loan Credit Agreement (Peco Energy Co)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If at least two Business Days prior to the commencement of any Interest Period for a an Adjusted Eurocurrency Borrowingany SOFR LoanRate Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Eurocurrency Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Eurocurrency Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall promptly give written notice thereof to the Borrower and the applicable Lenders by telephonehand delivery, facsimile or other electronic transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR an Adjusted Eurocurrency Rate Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof an ABR Borrowing on the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR an Adjusted Eurocurrency Rate Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period Borrowing and the utilization of the Eurocurrency Rate component in which a Market Disruption Event is in effectdetermining the Alternate Base Rate shall be suspended.
(b) Notwithstanding the foregoing, Borrower may request that if the Administrative Agent request has made the determination described in clause (a)(i) of this Section 2.14 and/or is advised by the Required Lenders of their determination in accordance with clause (a)(ii) of this Section 2.14 and the Borrower shall so request, the Administrative Agent, the Required Lenders and the Borrower shall negotiate in good faith to confirm amend the definition of “Eurocurrency Rate” and other applicable provisions to preserve the original intent thereof in light of such change; provided that, until so amended, such Loans impacted by clauses (a)(i) and (a)(ii) of this Section 2.14 will be handled as otherwise provided pursuant to the terms of this Section 2.14.
(c) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the Screen Rate is not available or published on a current basis and such circumstances giving rise are unlikely to be temporary; or
(ii) the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the Screen Rate shall no longer be made available, or used for determining the interest rate of loans; provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Market Disruption Event Administrative Agent, that will continue to be in effectprovide LIBOR after such specific date (such specific date, the “Scheduled Unavailability Date”); provided or
(iii) syndicated loans currently being executed, or that (A) Borrower shall not be permitted include language similar to submit any such request more than once in any 30‑day period and (B) nothing that contained in this Section 2.14 2.14, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, then, reasonably promptly after such determination by the failure to provide confirmation of Administrative Agent or receipt by the continued effectiveness Administrative Agent of such Market Disruption Event notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing LIBOR in accordance with this Section 2.14 with (x) one or more SOFR-Based Rates or (y) another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated (the “LIBOR Adjustment;” and any such proposed rate, a “LIBOR Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent and the Borrower shall have posted such proposed amendment to all Lenders unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders (A) in the case of an amendment to replace LIBOR with a rate described in clause (x), object to the LIBOR Adjustment; or (B) in the case of an amendment to replace LIBOR with a rate described in clause (y), object to such amendment; provided that for the avoidance of doubt, in the case of clause (A), the Required Lenders shall not be entitled to object to any SOFR-Based Rate contained in any way affect such amendment. Such LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent’s , such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or Required Lenders’ the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall be suspended (to the extent of the affected Eurocurrency Rate Loans or Interest Periods), and (y) the Eurocurrency Rate component shall no longer be utilized in determining the Alternate Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans (subject to the foregoing clause (y)) in the amount specified therein. Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than 0.75% for purposes of this Agreement. In connection with the implementation of a LIBOR Successor Rate, the Administrative Agent will have the right to provide make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any additional notices other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of a Market Disruption Event as any other party to this Agreement; provided in this Section 2.14that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such LIBOR Successor Conforming Changes to the Lenders reasonably promptly after such amendment becomes effective.
Appears in 1 contract
Alternate Rate of Interest. (a) Subject to Section 2.27clauses (b), if(c), (d), (e), (f) and (g) of this subsection 3.7, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR LIBOR Rate (including because the LIBOR Screen Rate is not available or Term SOFR, as applicablepublished on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO LIBOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Revolving Borrowing (unless prepaid) shall be continued as, or converted to or continued as onof the last day of the Interest Period applicable thereto as to, an ABR Borrowing and (iiB) if any Borrowing Request requests a EurocurrencySOFR BorrowingEurocurrency Revolving Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing. During Furthermore, if any period in which a Market Disruption Event Eurocurrency Loan is in effect, Borrower may request that outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent request referred to in this subsection 3.7(a) with respect to the Required LIBOR Rate, then until the Administrative Agent notifies the Borrower and the Lenders to confirm that the circumstances giving rise to such notice no longer exist, then on the Market Disruption Event continue last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated on such day.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this subsection 3.7), if a Benchmark Transition Event, an Early Opt-in effectElection or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that that, this clause (Ac) Borrower shall not be permitted effective unless the Administrative Agent has delivered to submit any such request more than once the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (1) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date, (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes, (4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (B5) nothing contained the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this subsection 3.7, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Section 2.14 Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this subsection 3.7.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (6) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR Rate) and either (a) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (b) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (7) if a tenor that was removed pursuant to clause (i) above either (a) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (b) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Borrowing of, conversion to or continuation of Eurocurrency Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Eurocurrency Borrowing into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Eurocurrency Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, then until such time as a Benchmark Replacement is implemented pursuant to this subsection 3.7, then on the last day of the Interest Period applicable to such Loan (or the failure to provide confirmation of the continued effectiveness of next succeeding Business Day if such Market Disruption Event day is not a Business Day), such Loan shall in any way affect be converted by the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided Agent to, and shall constitute, an ABR Loan denominated in this Section 2.14Dollars on such day.
Appears in 1 contract
Samples: Credit Agreement (Frontdoor, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanPeriod:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or LIBOR (including, without limitation, because the LIBO RateTerm Screen Rate is not available or published on a current basis),Adjusted Term SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders Requisite Holders that the Adjusted LIBO Rate or the LIBO RateTerm LIBORAdjusted Term SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders Holders (or Holder) of making its purchasing or maintaining their Loans included in such Borrowing Notes (or its Note) for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Issuer and the applicable Lenders Holders by telephone, facsimile transmission written or PDF attachment to an email electronic notice as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Issuer and the Lenders Holders that the circumstances giving rise to such notice no longer exist, ,
(iA) any Notes requested to be issued and purchased on the first day of such Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing Period shall be ineffective issued and such Borrowing purchased as ABR Notes and (B) any outstanding Notes shall be converted to or continued as onof converted, on the last day of the then-current Interest Period applicable thereto as an Period, to ABR Borrowing Notes.
(b) If at any time the Agent or Requisite Holders determine (which determination shall be conclusive and binding absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) if any Borrowing Request requests the circumstances set forth in clause (a)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate either the Term SOFR Administrator or a EurocurrencySOFR BorrowingGovernmental Authority has made a public statement or published information (x) that the Term SOFR Administrator has ceased or is insolvent (and there is no successor administrator that will continue publication of the Term SOFR Reference Rate) or the Term SOFR Reference Rate will permanently or indefinitely cease to be published or (y) identifying a specific date after which the LIBOR ScreenTerm SOFR Reference Rate shall no longer be representative or may no longer be used for determining interest rates, then the Requisite Holders and the Issuer shall negotiate in good faith to establish an alternate rate of interestto LIBOR that gives due consideration to the then prevailing market convention in the United States at such Borrowing time for determining a rate of interest for notes or loans comparable in character to the outstanding Notes, and the Issuer, the Agent and the Requisite Holders shall enter into an amendment to this Agreement (which shall be made binding on all Holders) to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Until an ABR Borrowing. During any period alternate rate of interest shall be determined in which a Market Disruption Event is accordance with this clause (b) (but, in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that case of the circumstances giving rise described in clause (ii) of the first sentence of this Section 2.15(b), only to the Market Disruption Event continue extent the LIBOR Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Notes requested to be in effect; provided that issued and purchased shall be issued and purchased as ABR Notes and (Ay) Borrower any outstanding Notes shall be converted, on the last day of the then-current Interest Period, to ABR Notes. The Agent and the Requisite Holders do not warrant or accept responsibility for, and shall not be permitted have any liability with respect to, the administration, submission or any other matter related to submit the rates in the definition of “LIBORdefinitions of “Adjusted Term SOFR”, “Term SOFR” or “Term SOFR Reference Rate” or with respect to any rate that is an alternative or replacement for or successor to any such request more than once in rate (including, without limitation, any 30‑day period and (B) nothing contained in such alternate rate of interest established under this Section 2.14 2.15(b)) or the failure to provide confirmation effect of any of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14foregoing.
Appears in 1 contract
Samples: Note Purchase Agreement (Silverbow Resources, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent reasonably determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or (including, without limitation, because the LIBO RateTerm SOFR Screen Rate is not available or Term SOFR, as applicable, published on a current basis) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email any Electronic System as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (ix) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be repaid or converted to or continued as onof into an ABR Borrowing on the last day of the then current Interest Period applicable thereto as an ABR Borrowing and (iiy) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive and binding absent manifest error) that (i) the circumstances set forth in Section 2.14(a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 2.14(a)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate); provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 11.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to confirm that such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances giving rise described in clause (ii) of the first sentence of this Section 2.14(b), only to the Market Disruption Event continue to extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be in effect; provided that (A) Borrower shall not be permitted to submit ineffective and any such request more than once in any 30‑day period Eurodollar Borrowing shall be repaid or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto and (By) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of if any Borrowing Request requests a Eurodollar Borrowing, such Market Disruption Event Borrowing shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event be made as provided in this Section 2.14an ABR Borrowing.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing denominated in any currency:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for the currency in which such Eurocurrency Borrowing is or is to be denominated (the "Applicable Currency") for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by Lenders having Revolving Credit Exposures and unused Revolving Commitments representing more than 50% of the Required Lenders sum of the total Revolving Credit Exposures and unused Revolving Commitments at such time (or, in the case of a Eurocurrency Competitive Loan, the Lender that is required to make such Loan) that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period for the Applicable Currency will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower Company and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email telecopy as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Revolving Borrowing to, or continuation of any such Revolving Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective ineffective, and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing and Borrowing, (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Revolving Borrowing, such Revolving Borrowing shall be made as an ABR Borrowing (or such Borrowing shall not be made if the Company revokes (and in such circumstances, such Borrowing Request may be revoked notwithstanding any other provision of this Agreement) such Borrowing Request by telephonic notice, confirmed promptly in writing, not later than one Business Day prior to the proposed date of such Borrowing. During ) and (iii) any period request by the Company for a Eurocurrency Competitive Borrowing denominated in which a Market Disruption Event is in effect, Borrower may request the Applicable Currency shall be ineffective; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice do not affect all the Market Disruption Event continue Lenders, then requests by the Company for Eurocurrency Competitive Borrowings denominated in the Applicable Currency may be made to be in effect; provided Lenders that (A) Borrower shall are not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14affected thereby.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Fortune Brands Inc)
Alternate Rate of Interest. Subject IfSubject to Section 2.27, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses clause (a) and (b), a “Market Disruption Event”), then, ; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email e-mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurocurrency Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day 30-day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14. If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 9.08, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (but, in the case of the circumstances described in Section 2.14(b), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurocurrency Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Appears in 1 contract
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.2710.1, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Rate Loan:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Majority Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans (or its Loan) included in such Borrowing borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request notice of Conversion or Continuation that requests the conversion of any applicable Borrowing Loan to, or continuation of any such Borrowing Loan as, a EurocurrencySOFR Borrowing Eurocurrency Rate Loan shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (iiB) if any Borrowing Request Committed Loan Notice requests a EurocurrencySOFR BorrowingEurocurrency Rate Loan, such Borrowing borrowing shall be made as a Base Rate Loan.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an ABR Borrowing. During Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any period setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in which accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Market Disruption Event Benchmark Replacement is determined in effectaccordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, Borrower may request that such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent request has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders to confirm that the circumstances giving rise Majority Lenders.
(c) Notwithstanding anything to the Market Disruption contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event continue and its related Benchmark Replacement Date have occurred prior to be the Reference Time in effectrespect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that that, this clause (Ac) Borrower shall not be permitted effective unless the Administrative Agent has delivered to submit any such request more than once the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any 30‑day period and (B) nothing contained in other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Section 2.14 Agreement or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14other Loan Document.
Appears in 1 contract
Samples: 364 Day Term Loan Agreement (American Tower Corp /Ma/)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.273.03, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFRLIBOR Rate, as applicableapplicable (including because the LIBOR Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Eurodollar Rate or the LIBO RateTerm SOFR or Term SOFRLIBOR Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Term Loans (or its Term Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request Term Loan Notice that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and ineffective; provided that if the circumstances giving rise to such Borrowing notice affect only one Type of Borrowings, then the other Type of Borrowings shall be converted permitted.
(b) Notwithstanding anything to the contrary herein or continued in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as onof applicable, and its related Benchmark Replacement Date have occurred prior to the last day Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.03, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.03.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period applicable thereto as an ABR Borrowing Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing Request requests of, conversion to or continuation of Eurodollar Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a EurocurrencySOFR Borrowing, such request for a Borrowing shall be made as an ABR Borrowingof or conversion to Base Rate Loans. During any period in which Benchmark Unavailability Period or at any time that a Market Disruption Event tenor for the then-current Benchmark is in effectnot an Available Tenor, Borrower may request that the Administrative Agent request component of Base Rate based upon the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall then-current Benchmark or such tenor for such Benchmark, as applicable, will not be permitted to submit any such request more than once used in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation determination of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Base Rate.
Appears in 1 contract
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement first day of any Interest Period for a Eurocurrency Borrowingany SOFR LoanPeriod:
(ai) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means (including, without limitation, by means of an Interpolated Rate) do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by shall have received notice from the Required Majority Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile fax or other electronic transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective (and such Borrowing shall be automatically converted to or continued as onof into ABR Loans on the last day of the applicable Interest Period applicable thereto as an ABR Borrowing and Period), (iiB) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During .
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) that (i) the Required circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 12.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within ten Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Majority Lenders to confirm stating that the Majority Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances giving rise described in clause (ii) of the first sentence of this Section 3.03(b), only to the Market Disruption Event continue extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (y) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in zero for the purposes of this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Agreement.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Goodrich Petroleum Corp)
Alternate Rate of Interest. (a) Subject to clauses (b), (d), (e), (f) and (g) of this Section 2.272.14, if, if prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanBorrowing:
(ai) the Administrative Agent Agent, after consultation with the Borrower, determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate Term SOFR or the LIBO RateTerm Term SOFR or Term SOFRRate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate Term SOFR or the LIBO RateTerm Term SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR SOFR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof on the last day of the Interest Period applicable thereto as an ABR Borrowing (in the case of SOFR Borrowings), and (ii) if any Borrowing Request requests a EurocurrencySOFR SOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During Borrowing (in the case of SOFR Borrowings).
(b) Notwithstanding anything to the contrary herein or in any period other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in which respect of any setting of the then-current Benchmark, then (x) if a Market Disruption Event Benchmark Replacement is determined in effectaccordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, Borrower may request that such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m., Local Time, on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent request has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders Lenders.
(c) [Reserved].
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Borrower, to confirm that the circumstances giving rise make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall not be permitted to submit any such request more than once contrary herein or in any 30‑day period other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (Bv) nothing contained in this Section 2.14 the commencement or the failure to provide confirmation conclusion of the continued effectiveness of such Market Disruption Event shall in any way affect Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent’s , or, if applicable, any Lender (or Required group of Lenders’ right ) pursuant to provide this Section 2.14, including any additional notices determination with respect to a tenor, rate or adjustment or of a Market Disruption Event the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as provided in expressly required pursuant to this Section 2.14.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent (after consultation with the Borrower) may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (after consultation with the Borrower) may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Alternate Rate of Interest. (i) Subject to clauses (ii), (iii), (iv), (v) and (vi) of this Section 2.272.08(a), if,
(1) the Administrative Agent determines reasonably and in good faith (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a Eurocurrency Borrowingany Term SOFR Loan:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Term SOFR Rate (including because the Term SOFR Reference Rate is not available or the LIBO RateTerm SOFR or Term SOFR, as applicable, published on a current basis) for such Interest Period; provided or
(2) the Administrative Agent is advised by the Required Lenders reasonably and in good faith that prior to the commencement of any Interest Period for a Term SOFR Borrowing, the Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Borrowings (or its Borrowings) included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders, or the Required Lenders notify the Administrative and the Borrower, as the case may be, that the circumstances giving rise to such notice no longer exist with respect to the relevant benchmark rate (which notice shall be delivered within five (5) Business Days after such circumstances cease to exist) and (y) the Borrower delivers a notice of conversion or continuation in accordance with the terms of Section 2.10 or a Borrowing Request in accordance with the terms of Section 2.03, any notice of conversion or continuation that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term SOFR Borrowing, or any notice of Borrowing that requests a Term SOFR Borrowing, may be revoked by the Borrower and, failing that, shall instead be deemed to be a notice of conversion or continuation or a Borrowing Request for an ABR Loan. Furthermore, if any Term SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.08(a) with respect to the Term SOFR Rate, then until (x) the Administrative Agent notifies the Borrower and the Lenders, or the Required Lenders notify the Administrative and the Borrower, as the case may be, that the circumstances giving rise to such notice no longer exist with respect to the relevant benchmark rate (which notice shall be delivered within five (5) Business Days after such circumstances cease to exist) and (y) the Borrower delivers a new notice of conversion or continuation in accordance with the terms of Section 2.10 or a new Borrowing Request in accordance with the terms of Section 2.03, any such Term SOFR Loan shall on the last day of the Interest Period applicable to such Term SOFR Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute an ABR Loan).
(ii) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(iii) Notwithstanding anything to the contrary herein (including in Section 9.08 of this Agreement) or in any other Loan Document, the Administrative Agent will have the right, in consultation with the Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iv) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (v) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, the Borrower or any Lender pursuant to this Section 2.08(a), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.08(a).
(v) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (a) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (b) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (a) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (b) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(vi) The Borrower may revoke any request for a Borrowing of Term SOFR Loans, or a conversion to or continuation of a Term SOFR Loan to be converted or continued, during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to an ABR Loan. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term SOFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Term SOFR Rate, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.08(a), any Term SOFR Loan shall on the last day of the Interest Period applicable to such Term SOFR Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(vii) Notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt, this Section 2.08(a) shall apply only to Loans denominated in dollars.
(i) In the event, and on each occasion, that prior to the commencement of any Interest Period for a CDOR Borrowing (a) the Administrative Agent shall have occurred at determined reasonably and in good faith that adequate and reasonable means do not exist for determining the applicable CDOR Rate for such time; or
Interest Period or (b) the Administrative Agent is advised by the Required Majority Revolving Lenders reasonably and in good faith that the Adjusted LIBO CDOR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing Borrowing, for such Interest Period (each of clauses (a) and (b)Period, a “Market Disruption Event”), then, then the Administrative Agent shall shall, as soon as practicable thereafter, give written or fax notice thereof of such determination to the Borrower and the applicable Lenders by telephoneLenders. In the event of any such notice, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies shall have advised the Borrower and the Revolving Lenders that the circumstances giving rise to such written or fax notice no longer exist, (iA) any request by the Borrower for a CDOR Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for a Canadian Base Rate Borrowing and (B) any Interest Election Request Period election that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR CDOR Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and ineffective.
(ii) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that the Administrative Agent request determines reasonably and in good faith (which determination shall be conclusive absent manifest error), or the Required Borrower or the Majority Revolving Lenders notify the Administrative Agent (with, in the case of the Majority Revolving Lenders, a copy to confirm the Borrower) that the Borrower or the Majority Revolving Lenders, as applicable, have determined, that:
(A) adequate and reasonable means do not exist for ascertaining the CDOR Rate for any requested Interest Period, including, without limitation, because the applicable screen rate is not available or published on a current basis, and such circumstances giving rise are unlikely to be temporary; or
(B) the supervisor for the administrator of the CDOR Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the CDOR Rate shall no longer be made available, or used for determining the interest rate of loans; then, after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the CDOR Rate with an alternate benchmark rate (including any mathematical or other adjustments to the Market Disruption Event continue to be benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in effectthe United States in lieu of the CDOR Rate (any such proposed rate, a “Successor Rate”) and the Administrative Agent may make other Successor Rate Conforming Changes thereto in consultation with the Borrower; provided that (A) Borrower at no time shall not the Successor Rate be permitted less than zero for purposes of this Agreement and, notwithstanding anything to submit the contrary in Section 9.08, any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Majority Revolving Lenders have delivered to the Administrative Agent notice that such Majority Revolving Lenders do not accept such amendment.
(iii) If no Successor Rate has been determined and the circumstances under clause (b)(i) above exist, the obligation of the Lenders to make or maintain CDOR Loans shall be suspended, (to the extent of the affected CDOR Loans or Interest Periods). Upon receipt of such notice, the Borrower may revoke any pending request more than once for a CDOR Borrowing of, conversion to or continuation of CDOR Loans (to the extent of the affected CDOR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Canadian Base Rate Loans in any 30‑day period and the amount specified therein.
(Biv) nothing contained Notwithstanding anything to the contrary in this Section 2.14 or Agreement, for the failure to provide confirmation avoidance of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in doubt, this Section 2.142.08(b) shall apply only to Loans denominated in Canadian Dollars.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Alternate Rate of Interest. (a) Subject to clauses (b), (c), (d), (e), (f) and (g) of this Section 2.272.9, if, if prior to the commencement of any Interest Accrual Period for a Eurocurrency Borrowingany SOFR Loanan Advance:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) at any time, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Accrual Period; provided that no Benchmark Transition Event shall have occurred at such timetimeDaily Simple SOFR; or
(bii) the Administrative Agent is advised by the Required Lenders that the theat any time, Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period Accrual PeriodDaily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans included in such Borrowing Advances (or its Advance) for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Accrual PeriodLoans bearing interest by reference to Adjusted Daily Simple SOFR; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist with respect to the relevant Benchmark, the interest rate applicable to the Advances shall be the Alternate Base Rate.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Agent has delivered to the Lenders and the Borrower a Term SOFR Notice.
(d) In connection with the implementation of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Agent will promptly notify the Borrower and the Lenders of (i1) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii2) the implementation of any Benchmark Replacement, (iii3) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v4) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.9, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.9.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Xxxxxxxxx has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Agent may modify the definition of “Interest Election Request that requests the conversion of Accrual Period” for any applicable Borrowing to, Benchmark settings at or continuation of any after such Borrowing as, a EurocurrencySOFR Borrowing shall be ineffective and time to remove such Borrowing shall be converted to unavailable or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of “Interest Accrual Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, and at all times during the Borrower may revoke any Borrowing Request requests request for an Advance of, conversion to or continuation of Advance to be made, converted or continued during anya Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a EurocurrencySOFR Borrowing, such Borrowing shall be made as request for an ABR BorrowingAdvance of or conversion to Alternate Base Rate Advances. During any period in which Benchmark Unavailability Period or at any time that a Market Disruption Event tenor for the then-current Benchmark is in effectnot an Available Tenor, Borrower may request that the Administrative Agent request component of the Required Lenders to confirm that Alternate Base Rate based upon the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower shall then-current Benchmark or such tenor for such Benchmark, as applicable, will not be permitted to submit any such request more than once used in any 30‑day period and (B) nothing contained in this Section 2.14 or determination ofAdvances will bear interest at the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14Alternate Base Rate.
Appears in 1 contract
Samples: Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicableapplicable (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFRRate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telephone or PDF attachment to an email electronic means as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist (which notice shall be promptly given by the Administrative Agent when such circumstances no longer exist), (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the Interest Period applicable thereto as an ABR Borrowing ineffective, and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request ; provided that the Administrative Agent request the Required Lenders to confirm that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the Market Disruption Event continue other Type of Borrowings shall be permitted.
(b) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in effectclause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin) ; provided that (A) Borrower that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be permitted determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.11(b), only to submit the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any such request more than once in Interest Election Request that requests the conversion of any 30‑day period Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (By) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of if any Borrowing Request requests a Eurodollar Borrowing, such Market Disruption Event Borrowing shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event be made as provided in this Section 2.14an ABR Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Integrated Device Technology Inc)
Alternate Rate of Interest. (a) Subject to Section 2.27clauses (b), (c), (d), (e) and (f) of this section 9.2, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(ai) the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a Term Benchmark Advance, that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm Term SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such timeRate cannot be determined pursuant to the definition thereof; or
(bii) the Administrative Agent is advised by the Required Majority Lenders that prior to the commencement of any Interest Period for a Term Benchmark Advance, the Adjusted LIBO Term SOFR Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or and maintaining their Loans Accommodations included in such Borrowing Term Benchmark Advance for such Interest Period (each Period, and the Majority Lenders have provided notice of clauses (a) and (b), a “Market Disruption Event”), then, such determination to the Administrative Agent; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission telecopy or PDF attachment to an email electronic mail as promptly as practicable thereafter thereafter. Upon receipt of such notice and until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist with respect to the relevant Benchmark, (i) the Borrower may revoke any Interest Election pending Accommodation Request that requests a conversion or rollover of or an Advance of a Term Benchmark Advance or, failing that, an Accommodation Request that requests an Advance of a Term Benchmark Advance shall instead be deemed to be a request for a conversion or rollover of or request for an Advance of a Base Rate Advance; provided that if the conversion circumstances giving rise to such notice affect only one type of any applicable Borrowing toAdvance, or continuation then all other types of any such Borrowing as, a EurocurrencySOFR Borrowing Advance shall be ineffective permitted. Furthermore, if any Term Benchmark Advance is outstanding on the date of the Borrowers' receipt of the notice from the Administrative Agent referred to in this section 9.2 with respect to a Adjusted Term SOFR Rate applicable to such Term Benchmark Advance, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such Borrowing notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers an Accommodation Request in accordance with the terms hereof, any Term Benchmark Advance shall be converted to or continued as onof on the last day of the Interest Period applicable thereto to such Term Benchmark Advance (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute a Base Rate Advance.
(b) Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Credit Document, the Administrative Agent will have the right, in consultation with the Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this agreement or any other Credit Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision, selection or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this section 9.2, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an ABR Borrowing event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this agreement or any other Credit Document, except, in each case, as expressly required pursuant to this section 9.2.
(e) Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of "Interest Period" for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowingtenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, such Borrowing shall or is no longer, subject to an announcement that it is or will no longer be made as an ABR Borrowing. During any period in which representative for a Market Disruption Event is in effectBenchmark (including a Benchmark Replacement), Borrower may request that then the Administrative Agent may modify the definition of "Interest Period" for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon the Borrower's receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request the Required Lenders for a Term Benchmark Advance of, conversion to confirm that the circumstances giving rise to the Market Disruption Event continue or continuation of Term Benchmark Advances to be in effect; provided that made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Advance into a request for a Advance of or conversion to a Base Rate Advance. If any Term Benchmark Advance is outstanding on the date of the Borrower's receipt of notice of the commencement of a Benchmark Unavailability Period with respect to an Adjusted Term SOFR Rate applicable to such Term Benchmark Advance, then until such time as a Benchmark Replacement is implemented pursuant to this section 9.2, (A1) Borrower any Advance of a Term Benchmark Advance shall not be permitted on the last day of the Interest Period applicable to submit any such request more than once in any 30‑day period and Advance (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of next succeeding Business Day if such Market Disruption Event shall in any way affect day is not a Business Day), be converted by the Administrative Agent’s or Required Lenders’ right to provide any additional notices of Agent to, and shall constitute a Market Disruption Event as provided in this Section 2.14Base Rate Advance.
Appears in 1 contract
Samples: Credit Agreement (Telus Corp)
Alternate Rate of Interest. Subject to Section 2.27, if, prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR Loan:
(a) If the Administrative Agent determines has made the determination (which such determination shall to be conclusive absent manifest error) that adequate and reasonable means do not exist (a) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for ascertaining newly originated loans in the Adjusted LIBO Rate U.S. syndicated loan market in the applicable currency or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(b) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental Authority having, or purporting to have, jurisdiction over the Administrative Agent is advised has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the U.S. syndicated loan market in the applicable currency, then the Administrative Agent may, to the extent practicable (in consultation with, and approval by, the Borrower and as determined by the Required Lenders that the Adjusted LIBO Rate Administrative Agent to be generally in accordance with similar situations in other transactions in which it is serving as administrative agent or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period (each of clauses (a) and (botherwise consistent with market practice generally), establish a replacement interest rate (the “Market Disruption EventReplacement Rate”), thenin which case, the Replacement Rate shall, subject to the next two sentences, replace such applicable interest rate for all purposes under the Loan Documents. In connection with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent and the Borrower as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 5.06. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including Section 12.02(b)), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall give notice thereof not have received, within five (5) Business Days of the delivery of such amendment to the Borrower and Lenders, written notices from such Lenders that in the applicable Lenders aggregate constitute Required Lenders, with each such notice stating that such Lender objects to such amendment (which such notice shall note with specificity the particular provisions of the amendment to which such Lender objects). To the extent the Replacement Rate is approved by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and until the Administrative Agent notifies and the Borrower and in connection with this Section 5.06, the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Borrowing Replacement Rate shall be ineffective and applied in a manner consistent with market practice; provided that, in each case, to the extent such Borrowing market practice is not administratively feasible for the Administrative Agent, such Replacement Rate shall be converted to or continued applied as onof the last day of the Interest Period applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request requests a EurocurrencySOFR Borrowing, such Borrowing shall be made as an ABR Borrowing. During any period in which a Market Disruption Event is in effect, Borrower may request that otherwise reasonably determined by the Administrative Agent request (it being understood that any such modification by the Required Lenders to confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect; provided that (A) Borrower Administrative Agent shall not be permitted to submit require the consent of, or consultation with, any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the Administrative Agent’s or Required Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 2.14).
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Viper Energy Partners LP)
Alternate Rate of Interest. Subject to Section 2.27, if, (a) If prior to the commencement of any Interest Period for a Eurocurrency Borrowingany SOFR LoanEurodollar Borrowing:
(ai) the Administrative Agent determines in good faith (which determination shall be conclusive absent manifest error) that adequate and reasonable means (including, without limitation, by means of an Interpolated Rate) do not exist for ascertaining the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(bii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO RateTerm SOFR or Term SOFR, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period (each of clauses (a) and (b), a “Market Disruption Event”), then, Period; then the Administrative Agent shall give notice thereof to the Borrower and the applicable Lenders by telephone, facsimile transmission or PDF attachment to an email as promptly as practicable thereafter and and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existexist (which notification shall be given promptly after the Administrative Agent obtains notice from the Required Lenders of the cessation of such circumstances), (i) any Interest Election Request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurocurrencySOFR Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to or continued as onof the last day of the a Eurodollar Borrowing with an Interest Period applicable thereto as an ABR Borrowing of one (1) month’s duration and (ii) if any Borrowing Request requests a EurocurrencySOFR Eurodollar Borrowing, such Borrowing shall be made as a Eurodollar Borrowing with an ABR Borrowing. During Interest Period of one (1) month’s duration.
(b) If at any period in which a Market Disruption Event is in effect, Borrower may request that time the Administrative Agent request determines (which determination shall be conclusive absent manifest error) that either (i) the circumstances set forth in subparagraph (a) of this Section 2.11 have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in subparagraph (a) of this Section 2.11 have not arisen but the supervisor for the administrator of the Adjusted LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Adjusted LIBO Rate shall no longer be used for determining interest rates for loans (in the case of either such clause (i) or (ii), an “Alternative Interest Rate Election Event”), the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Adjusted LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for leveraged syndicated loans in the U.S. at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 10.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days after the date notice of such alternate rate of interest is provided to the Lenders, a written notice from Required Lenders stating that they object to confirm that such amendment. To the circumstances giving rise to extent an alternate rate of interest is adopted as contemplated hereby, the Market Disruption Event continue to approved rate shall be applied in effecta manner consistent with prevailing market convention; provided that (A) Borrower shall to the extent such prevailing market convention is not be permitted to submit any such request more than once in any 30‑day period and (B) nothing contained in this Section 2.14 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and the Borrower. From such time as an Alternative Interest Rate Election Event has occurred and continuing until an alternate rate of interest has been determined in accordance with the terms and conditions of this paragraph, (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, an Adjusted LIBO Rate Loan shall be ineffective, and (y) if any Borrowing Request requests an Adjusted LIBO Rate Loan, such Borrowing shall be made as a Eurodollar Borrowing with an Interest Period of one (1) month’s or Required Lenders’ right duration; provided that to provide any additional notices the extent such Alternative Interest Rate Election Event is as a result of a Market Disruption Event as provided clause (ii) above in this Section 2.14subparagraph (b), then clauses (x) and (y) of this sentence shall apply during such period only if the Adjusted LIBO Rate for such Interest Period is not available or published at such time on a current basis. Notwithstanding anything contained herein to the contrary, if such alternate rate of interest as determined in this subparagraph (b) is determined to be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Appears in 1 contract