Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing: (a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if: (i) 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 Eurodollar RateAdjusted Term SOFR Rate (including because the Term SOFR Reference 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 (ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day. (b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.. (c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11. (e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 2 contracts
Samples: Credit Agreement (Baker Hughes Holdings LLC), Credit Agreement (Baker Hughes Co)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.10, if:
if prior to the first day of any Interest Period for a Daily Simple SOFR Loan or Term SOFR Loan: (i) 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 Eurodollar RateAdjusted Daily Simple SOFR or Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Dollars and for any requested Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
or (ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Daily Simple SOFR or Term SOFR Rate for such Dollars and any requested 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 ), including in such Borrowing for the applicable currency and such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (ix) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request interest election request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing Daily Simple SOFR Loan or Term SOFR Loan, as applicable, shall be ineffective, ineffective and (iiy) if any Borrowing Request that request requests a Eurodollar BorrowingDaily Simple SOFR Loans or Term SOFR Loans, suchTerm Benchmark as applicable, such Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permittedLoans. Furthermore, if any Daily Simple SOFR Loan or Term Benchmark Loan SOFR Loan, as applicable, is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) 2.10 with respect to a Relevant Rate the applicable rate applicable to such Daily Simple SOFR Loan or Term Benchmark 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 and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03exist, then any Term Benchmark such Daily Simple SOFR Loan shall on the last day of the Interest Period applicable to such Loan, immediately be converted by the Administrative Agent to, and shall constitute, an ABR Loan and on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting last day 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement from Lenders comprising the Required Lenders; provided that, with respect Interest Period applicable to any proposed amendment containing such Term SOFR Loan, any SOFR-Based Rate, the Lenders such Term SOFR Loan 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 converted by the Administrative Agent orto, if applicableand shall constitute, 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11ABR Loan.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Bunge Global SA), Revolving Credit Agreement (Bungeltd)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, ifif prior to the commencement of any Interest Period for a Term Benchmark Borrowing:
(i) 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 Eurodollar RateAdjusted Term SOFR Rate or the Adjusted Term XXXXX Rate, as applicable (including because the Term SOFR Reference Rate or the Term XXXXX Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, SOFR or the Adjusted Term SOFR Rate XXXXX 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 the applicable Agreed Currency and such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower Representative and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Term SOFR Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Term SOFR Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for a Daily Simple SOFR Borrowing, or, if Daily Simple SOFR is unavailable, an ABR Borrowing and (B) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term XXXXX Borrowing and any Borrowing Request that requests a Term XXXXX Borrowing shall instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for a Canadian Prime Rate Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower Representative delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, (1)(A) any Term Benchmark SOFR Loan shall shall, on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Daily Simple SOFR Borrowing, or, if Daily Simple SOFR is unavailable, an ABR Borrowing, and (B) any Term XXXXX Loan shall, on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Canadian Prime Rate Borrowing, in each case, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation implementation, administration or adoption of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative AgentAgent will have the right, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower Representative and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableand its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 RateSOFR) and either (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 applicable 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, (x) such Borrower will be deemed to have converted any request for (1) a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or conversion to Daily Simple SOFR Loans, or, if Daily Simple SOFR is unavailable, ABR Loans, (2) a Term XXXXX Borrowing into a request of or conversion to Canadian Prime Rate Loans and (y) any Term Benchmark Borrowing denominated in a Foreign Currency other than Canadian Dollars shall be 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 ABR or the Canadian Prime Rate, as applicable, based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR or the Canadian Prime Rate, as applicable. Furthermore, if any Term Benchmark Loan in any Agreed Currency is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to such Term Benchmark Loan, then (i) if such Term Benchmark 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, a Daily Simple SOFR Loan denominated in Dollars or, if Daily Simple SOFR is unavailable, an ABR Loan denominated in Dollars, in each case, on such day, (ii) if such Term Benchmark Loan is denominated in Canadian Dollars, then on the last day of the Interest Period applicable to such Term Benchmark Loan (or the next succeeding Business Day if such day is not a Business Day), such Term Benchmark Loan shall be converted by the Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan on such day and (iii) if such Term Benchmark Loan is denominated in any Foreign Currency other than Canadian 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, a Daily Simple SOFR Loan, or, if Daily Simple SOFR is unavailable, an ABR Loan, in each case denominated in Dollars (in an amount equal to the Dollar Amount of such Foreign 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 Term Benchmark Loan into a Daily Simple SOFR Loan or ABR Loan, as applicable, denominated in Dollars), and, in the case of such subclause (B), upon any subsequent implementation of a Benchmark Replacement in respect of such Foreign Currency pursuant to this Section 2.14, such Daily Simple SOFR Loan or ABR Loan, as applicable, denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Term Benchmark Loan denominated in such original Foreign Currency on the day of such implementation, giving effect to such Benchmark Replacement in respect of such Foreign Currency.
Appears in 2 contracts
Samples: Credit Agreement (Endo, Inc.), Credit Agreement (Endo, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (bSection 2.08(b), (c), (d), (e) and (f) of this Section 2.11, if:
: (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingSOFR Advance, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), ) for such Interest PeriodPeriod or (B) at any time, that adequate and reasonable means do not exist for ascertaining the Adjusted Daily Simple SOFR; provided that no Benchmark Transition Event shall have occurred at such time; or
or (ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , in writing (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingSOFR Advances, that the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining such Advances for such Interest Period or (or LenderB) at any time, that the Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest PeriodDaily Simple SOFR Advances; then the Administrative Agent shall give notice thereof (which may be by telephone) to the Borrower Mondelēz International and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, Agent
(i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (including any related adjustments) for all purposes hereunder and under any other 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 (including any related adjustments) for all purposes hereunder and under any other 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(cii) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(diii) The Administrative Agent will promptly notify the Borrower Mondelēz International and the Lenders of (iA) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (iiB) the implementation of any Benchmark Replacement, (iiiC) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (ivD) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fb)(iv) below and (vE) 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, Mondelēz International or any Lender (or group of Lenders) pursuant to this Section 2.112.08, 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.occurrence
(eiv) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFR RateSOFR) and either (ix) 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 (iiy) 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 (iiB) if a tenor that was removed pursuant to clause (iA) above either (ix) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiy) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 2 contracts
Samples: Five Year Revolving Credit Agreement (Mondelez International, Inc.), 364 Day Revolving Credit Agreement (Mondelez International, Inc.)
Alternate Rate of Interest. If (ax) If on or prior to the commencement of any the Interest Period for any Eurocurrency Borrowing or, if the then-current Benchmark is Adjusted Term SOFR, any SOFR Borrowing of a Eurodollar Borrowing:
Class or (ay) Subject to clauses at any time for any RFR Borrowing or, if the then-current Benchmark is Daily Simple SOFR, any SOFR Borrowing (b), (c), (d), (e) and (f) the Currency of this Section 2.11, if:such Borrowing herein called the “Affected Currency”):
(i) 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 Eurodollar RateAdjusted Term SOFR Rate Benchmark for the Affected Currency for such Interest Period (including because the Term SOFR Reference relevant 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 timebasis)cannot be determined pursuant to the respective definition thereof; or
(ii) the Administrative Agent is advised by the Required Lenders of such Class that the Eurodollar , prior to Benchmark for the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate Affected Currency for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their respective Eurocurrency Loans, SOFR Loans (or its Loan) RFR Loans, as applicable, included in such Borrowing for such Interest PeriodPeriod (if applicable); and, in each case, the provisions of Section 2.11(c) are not applicable, then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic e-mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (x) any Borrowing in the Affected Currency or (y) the Borrower delivers a new Interest Election Request in accordance with the terms obligation of Section 2.05 such Lender to convert ABR Borrowings to Eurocurrency Borrowings or a new Borrowing Request in accordance with the terms of Section 2.03SOFR Borrowings shall be suspended, (ii) any Interest Election Request that requests the conversion of any Eurocurrency Borrowing in the Affected Currency to, or the continuation of any Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing denominated in the Affected Currency, shall be ineffective and, in each case, unless prepaid, (x) if the Affected Currency is Dollars, such Borrowing shall be ineffectivecontinued as, or converted to, an ABR Borrowing, (y) if the Affected Currency is a Foreign Currency (other than Canadian Dollars), such Borrowing shall be converted to Dollars based on the Dollar Equivalent at such time and shall be an ABR Borrowing and (iiz) if the Affected Currency is Canadian Dollars, such Borrowing shall be continued as, or converted to, a Borrowing at the Canadian Prime Rate, (iiiii) if the Affected Currency is Dollars, any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Eurocurrency Borrowing or SOFR Borrowing denominated in the Affected Currency shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, (iiiiv) if the Affected Currency is a Foreign Currency (other than Canadian BUSINESS.29745768.5 Dollars), any Borrowing Request that requests a Eurocurrency Borrowing or an RFR Borrowing denominated in the Affected Currency shall be ineffective and (ivv) if the Affected Currency is Canadian Dollars, any Borrowing Request that requests a Eurocurrency Borrowing denominated in the Affected Currency shall be made at the Canadian Prime Rate. Furthermore, if any Eurocurrency Loan or SOFR Loan in any Affected Currency is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to the Benchmark applicable to such Eurocurrency Loan or SOFR Loan, then (i) if any such Eurocurrency Loan is denominated in Dollars, on the last day of the Interest Period applicable to such Loan, such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day, (ii) if such Eurocurrency Loan is denominated in any Foreign Currency (other than Canadian Dollars), such Loan shall, on the last day of the Interest Period applicable to such Loan, at the Borrower’s election prior to such day: (A) be prepaid 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 Loan) 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 aforementioned notice no longer exist and with the Borrower’s consent (which may be given in its sole discretion), such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in such original Currency (in an amount equal to the Foreign Currency Equivalent of such Loan) on the day of such notice affect fewer than allonly one Types being given to the Borrower by the Administrative Agent or, (iiiii) if any such Eurocurrency Loan is denominated in Canadian Dollars, such Loan shall, on the last day of Borrowingsthe Interest Period applicable to such Loan, then xxxxxx other Types at the Borrower’s election prior to such day: (A) be prepaid on such day or (B) be converted by the Administrative Agent to, and (subject to the remainder of Borrowings this subclause (B)) shall constitute, a Eurocurrency Loan where the Eurocurrency Rate is equal to the Canadian Prime Rate (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 a Eurocurrency Loan where the Eurocurrency RateBenchmark is equal to the Canadian Prime Rate),
(iii) if the then-current Benchmark is Adjusted Term SOFR, on the last day of the Interest Period applicable to any such SOFR Loan, such SOFR Loan shall be permittedconverted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or (iv) if the then-current Benchmark is Daily Simple SOFR, immediately, such SOFR Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day. Furthermore, if any Term Benchmark RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate the Daily Simple RFR applicable to such Term Benchmark RFR Loan, then until such Loan shall, at the Borrower’s election prior to such day: (xA) be prepaid on such day or (B) be converted by the Administrative Agent notifies 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 Loan) on such day (it being understood and agreed that if the Borrower and does not so prepay such BUSINESS.29745768.5 Loan on such day by 12:00 noon, Local Time, the Lenders Administrative Agent is authorized to effect such conversion of such RFR 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 such the aforementioned notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request Borrower’s consent (which may be given in accordance with the terms of Section 2.03its sole discretion), any Term Benchmark such ABR Loan denominated in Dollars shall on the last day of the Interest Period applicable to such Loan, then be converted by the Administrative Agent to, and shall constitute, an ABR RFR Loan on such day.
(b) Notwithstanding anything in an amount equal to the contrary herein, upon Foreign Currency Equivalent of such Loan) on the occurrence ofif a Benchmark Transition Event or an Early Opt-in Election, as applicable, day of such notice being given to the Borrower by the Administrative Agent. If the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then determines (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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders which determination 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 error) that the Daily Simple SOFR or their sole discretion and without consent from any other party heretoto this Agreement, except, in each caseAdjusted Term SOFR, as expressly required applicable, cannot be determined pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary hereinapplicable definition thereof, 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 (i) 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 Alternate Base Rate shall be determined by the Administrative Agent in its reasonable discretion or (ii) 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 without reference to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.clause
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.), Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.112.14, ifif prior to the commencement of any Interest Period for a Term Benchmark Borrowing:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail means as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffectiveineffective and such Borrowing shall be converted to or continued as on the last day of the Interest Period applicable thereto an ABR Borrowing (in the case of Term Benchmark Borrowings), and (ii) if any Borrowing Request that requests a Eurodollar Term Benchmark Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, if Borrowing (in the circumstances giving rise to such notice affect fewer than allonly one Types case of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayBorrowings).
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) [Reserved].
(d) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative AgentAgent will have the right, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(de) 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 applicableand its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 Agent, or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(ef) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), ) (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist exist, with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans or RFR 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 Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day, be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 2 contracts
Samples: Credit Agreement (Paycom Software, Inc.), Credit Agreement (Paycom Software, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.113.03, ifif prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBO Rate, as applicable (including because the Term LIBO ScreenTerm SOFR Reference 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 (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR Rate; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate or the LIBO 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR Rate 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.02 or a new Borrowing Request in accordance with the terms of Section 2.032.02, (A) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, ineffective and (iiB) if any Borrowing Request that requests a Eurodollar EurodollarTerm Benchmark Revolving Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead as an ABR Borrowing; provided that, upon receipt of such notice, (A) the Borrower may, at its option, revoke any pending shall instead be deemed to be an Interest Election Request or Borrowing 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) and (B) 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.Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR Rate is not also the subject of Section 3.03(a)(i) or (ii) above or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR Rate also is the subject of Section 3.03(a)(i) or (ii) above and (B) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR a Base Rate Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(aSection 3.03(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.032.02, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an ABR RFR Borrowing so long as the Adjusted Daily Simple SOFR Rate is not also the subject of Section 3.03(a)(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR Rate also is the subject of Section 3.03(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (23) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark 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, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (c) shall not be effective unless 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 Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with shall not be required to deliver a Benchmark Replacement will occur prior to the applicable Benchmark Term SOFR Notice after a Term SOFR Transition Start Date..Event and may do so in its sole discretion.[Reserved].
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinherein or in any Loan Document, the Administrative Agent, in consultation with the consent of the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(de) 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 andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fd) 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 2.113.03, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.113.03.
(ef) Notwithstanding anything to the contrary hereinherein 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 or LIBO Rate) and either (iA) 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 (iiB) the regulatory supervisor for the administrator of such Benchmark has Bencxxxxx xxx 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 EurodollarTerm Benchmark Borrowing of, conversion to or continuation of EurodollarTerm 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 for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (ABR Loans) an RFR Borrowing so long as the Adjusted Daily Simple SOFR Rate is not the subject of a Benchmark Transition Event or (B) a Base Rate Borrowing if the Adjusted Daily Simple SOFR Rate is the subject of a Benchmark Transition Event. 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 ABRBase Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. the Base Rate. Furthermore, if any Term Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 3.03 (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR Rate is not the subject of a Benchmark Transition Event or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR Rate is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
Appears in 2 contracts
Samples: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section Section 2.11, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or the Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower Company and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower Company delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) a Borrowing for Loans that bear interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the BorrowerCompany’s receipt of the notice from the Administrative Agent referred to in this Section Section 2.11(a) with respect to a Relevant Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower Company delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constituteconstitute (x) a Loan bearing interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Contract shall be deemed not to be a “Loan Document” for purposes of this Section 2.11), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section Section 2.11.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company 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 Company will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) a Borrowing for Loans that bear interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.11, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) a Loan bearing interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
Appears in 2 contracts
Samples: Term Loan Agreement (SAFG Retirement Services, Inc.), Term Loan Agreement (SAFG Retirement Services, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section Section 2.11, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest PeriodPeriod or (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or the Daily Simple SOFR; provided that no Benchmark Transition Event shall have occurred at such time; oror
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower Company and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower Company delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) a Borrowing for Loans that bear interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the BorrowerCompany’s receipt of the notice from the Administrative Agent referred to in this Section Section 2.11(a) with respect to a Relevant Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower Company delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constituteconstitute (x) a Loan bearing interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Contract shall be deemed not to be a “Loan Document” for purposes of this Section 2.11), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section Section 2.11.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company 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 Company will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) a Borrowing for Loans that bear interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.11, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) a Loan bearing interest at the Adjusted Daily Simple SOFR plus the Applicable Rate applicable to a Term Benchmark Loan, so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
Appears in 2 contracts
Samples: Term Loan Agreement (American International Group, Inc.), 18 Month Delayed Draw Term Loan Agreement (American International Group, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.18, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis)Adjusted CDOR, for the applicable Available Currency and such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark BorrowingLoan, the Adjusted Term SOFR Rate or Adjusted CDOR for the applicable Available Currency and 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 the applicable Available Currency and for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower Borrowers and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.12 or a new Borrowing Request in accordance with the terms of Section 2.032.02, (A) for Loans denominated in Dollars, any Interest Election Request that requests the conversion of any Borrowing toto Term SOFR Loans, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffectiveTerm SOFR Loans, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing Term SOFR Loans shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for Base Rate Loans; and (2) any Interest Election Request that requests the conversion to CDOR Loans, or continuation of any CDOR Loans, and any Borrowing Request that requests CDOR Loans shall instead be deemed to be an ABR Borrowing; provided thatInterest Election Request or a Borrowing Request, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowingsas applicable, then xxxxxx other Types of Borrowings shall be permittedfor Canadian Prime Rate Loans. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s Borrowers’ receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan2.18(a), then until (x) the Administrative Agent notifies the Borrower Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.12 or a new Borrowing Request in accordance with the terms of Section 2.032.02, (A) for Loans denominated in Dollars, any Term Benchmark SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Base Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 Loan; and (yB) if a Benchmark Replacement is determined for Loans denominated in accordance with clause Canadian Dollars, any CDOR Loan shall (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of any Benchmark setting at or after 5:00 p.m. (New York City timeI) on the fifth (5th) Business Day after last day of the Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection Interest Period applicable to such proposed amendmentBenchmark Replacement from Lenders comprising the Required Lenders; provided thatLoan, 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 converted by the Administrative Agent orto, if applicableand shall constitute, any Lender a Canadian Prime Rate Loan (or group of Lenders) pursuant to this Section 2.11, including any if the Agent determines (which 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 shall be conclusive and binding absent manifest error error) that the Canadian Prime Rate cannot be determined, any outstanding affected CDOR Loan shall, at the applicable Borrower’s election prior to such day (1) be prepaid by the relevant Borrower on such day or (2) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in Canadian Dollars shall be deemed to be a Term Benchmark Loan denominated in Dollars and may shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time), and (II) bear interest at the Canadian Prime Rate Loan (or if the Agent determines (which determination shall be made conclusive and binding absent manifest error) that the Canadian Prime Rate cannot be determined, any outstanding affected CDOR Loan shall, at the applicable Borrower’s election (1) be converted into Base Rate Loans denominated in its or their sole discretion and without consent from any other party heretoto this Agreement, except, Dollars (in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything an amount equal to the contrary herein, at any time (including in connection with the implementation Dollar Equivalent of a Benchmark Replacement), (iCanadian Dollars) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 immediately or (ii2) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 Replacementprepaid in full immediately), then the Administrative Agent shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 2 contracts
Samples: Credit Agreement (Vestis Corp), Credit Agreement (Vestis Corp)
Alternate Rate of Interest. (ai) If Subject to clauses (ii), (iii), (iv), (v), (vi) and (vii) of this Section 2.09(e), if prior to the commencement of any Interest Period for a Eurodollar Euro-Dollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(iA) 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 Eurodollar RateAdjusted Term SOFR LIBO Rate (including because for a Loan or for the Term SOFR Reference Rate is not available or published on a current basis), for such applicable Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(iiB) the Administrative Agent is advised by the Required Lenders Banks that the Eurodollar , prior to the commencement of any Interest Period LIBO Rate for a Term Benchmark Borrowing, Loan or for the Adjusted Term SOFR Rate for such applicable Interest Period will not adequately and fairly reflect the cost to such Lenders Banks (or LenderBank) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall give written notice thereof to the Borrower Company and the Lender or Lenders by telephone or, telecopy or electronic mail Banks as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Company and the Lenders Banks that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Euro-Dollar Borrowing shall be ineffective, ineffective and the Loans shall be converted to a Base Rate Borrowing and (ii) if any Borrowing Request that borrowing request requests a Eurodollar Euro-Dollar Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead be deemed to be an Interest Election Request or as a Borrowing Request, as applicable, for an ABR Base Rate Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(bii) Notwithstanding anything to the contrary hereinherein or in any other Credit Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 (23) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders Banks without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders Banks comprising the Required LendersBanks.
(iii) 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, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (iii) shall not be effective unless 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 Administrative Agent has delivered to the Banks and the Company a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with shall not be required to deliver a Benchmark Replacement will occur prior to the applicable Benchmark Term SOFR Notice after a Term SOFR Transition Start Date..Event and may do so in its sole discretion.
(civ) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Credit Document.
(dv) The Administrative Agent will promptly notify the Borrower Company and the Lenders Banks of (iA) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, (iiB) the implementation of any Benchmark Replacement, (iiiC) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (ivD) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fvi) below and (vE) 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 Bank (or group of LendersBanks) pursuant to this Section 2.112.10, 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 heretoto to this AgreementAgreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.112.09.
(evi) Notwithstanding anything to the contrary hereinherein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFR or the LIBO Rate) and either (ix) 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 (iiy) 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 (iiB) if a tenor that was removed pursuant to clause (iA) above either (ix) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiy) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(vii) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company may revoke any request for a Euro-Dollar Borrowing of, conversion to or continuation of Euro-Dollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Company will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate 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 the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Revolving Credit Agreement (Equitable Holdings, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement Solely for purposes of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, ifLoans denominated in Dollars:
(i) If in connection with any request for a Term SOFR Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any of such Loans, as applicable, (1) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in accordance with Section 8.1(a)(ii), and the circumstances under clause (A) of Section 8.1(a)(ii) or the Scheduled Unavailability Date has occurred (as applicable) or (B) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan, or (2) the Administrative Agent or the Required Banks determine that for any reason that Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Banks of funding such Loan, the Administrative Agent will promptly so notify the Borrowers and each Bank. Thereafter, (x) the obligation of the Banks to make or maintain Term SOFR Loans, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Banks described in clause (2) of this Section 8.1(a)(i), until the Administrative Agent upon instruction of the Required Banks) revokes such notice. Upon receipt of such notice, (i) the Borrowers may revoke any pending request for a Borrowing of, or conversion to, or continuation of Term SOFR Loans (to the extent of the affected Term SOFR 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 in the amount specified therein and (ii) any outstanding Term SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Period.
(ii) 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), prior or the Borrowers or Required Banks notify the Administrative Agent (with, in the case of the Required Banks, a copy to the commencement of any Interest Period for a Term Benchmark BorrowingBorrowers) that the Borrowers or Required Banks (as applicable) have determined, that that:
(A) adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted one month, three month and six month interest periods of Term SOFR Rate (including SOFR, including, without limitation, because the Term SOFR Reference Screen Rate is not available or published on a current basis), for basis and such Interest Period; provided that no Benchmark Transition Event shall have occurred at such timecircumstances are unlikely to be temporary; or
(iiB) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease; provided that, at the time of such statement, there is advised by the Required Lenders no successor administrator that the Eurodollar , prior is satisfactory to the commencement Administrative Agent, that will continue to provide such representative interest periods of any Interest Period for a Term Benchmark BorrowingSOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer representative or available permanently or indefinitely, the Adjusted Term SOFR Rate for such Interest Period will not adequately “Scheduled Unavailability Date”); then, on a date 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; then time determined by the Administrative Agent shall give notice thereof to (any such date, the Borrower and the Lender or Lenders by telephone or“Term SOFR Replacement Date”), telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing which date shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be deemed to be at the end of an Interest Election Request Period or a Borrowing Requeston the relevant interest payment date, as applicable, for an ABR Borrowing; provided thatinterest calculated and, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) solely with respect to a Relevant Rate applicable to such clause (B) above, no later than the Scheduled Unavailability Date, Term Benchmark Loan, then until (x) SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR plus the Administrative Agent notifies the Borrower and the Lenders SOFR Adjustment for any payment period for interest calculated that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, can be converted determined by the Administrative Agent toAgent, and shall constitutein each case, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 and or any other Loan Document (ythe “Successor Rate”). If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable, at the Borrowers’ election, on a monthly or quarterly basis. Notwithstanding anything to the contrary herein, (i) if a Benchmark the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement is determined Date, or (ii) if the events or circumstances of the type described in Section 8.1(a)(ii)(A) or (B) have occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Borrowers may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with clause (2) this Section 8.1 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the definition of “Benchmark Replacement” United States for such Benchmark Replacement Datealternative benchmark, and, in each case, including any mathematical or other adjustments to such Benchmark Replacement will replace benchmark giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such Benchmark for all purposes hereunder in respect benchmark. For the avoidance of doubt, any Benchmark setting such proposed rate and adjustments shall constitute a “Successor Rate”. Any such amendment shall become effective at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has shall have posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any proposed amendment to all Lenders Banks and the Borrower,Borrowers unless, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by prior to such time, written notice of objection to such proposed amendmentBenchmark Replacement from Lenders Banks 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 Banks have delivered to the Administrative Agent written notice that such Required Lenders accept Banks object to such amendment. No replacement The Administrative Agent will promptly (in one or more notices) notify the Borrowers and each Bank of Eurodollar the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with a Benchmark Replacement will occur prior market practice; provided that to the applicable Benchmark Transition Start Date..
(c) extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinSuccessor Rate, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrowers and the Banks reasonably promptly after such amendment becomes effective.
(db) The Administrative Agent will promptly notify the Borrower and the Lenders Solely for purposes of Loans denominated in a Foreign Currency:
(i) If in connection with any occurrence request for a Euro-Currency Loan or a conversion of Base Rate Loans to Euro-Currency Loans or a Benchmark Transition Event or an Early Opt-in Electioncontinuation of any of such Loans, as applicable, (ii1) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (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 ordetermines (which determination shall be conclusive absent manifest error) that (A) no Euro-Currency Successor Rate for the Relevant Rate for the applicable Foreign Currency has been determined in accordance with Section 8.1(b)(ii) and the circumstances under clause (A) of Section 8.1(b)(ii) or the Euro-Currency Scheduled Unavailability Date has occurred with respect to such Relevant Rate (as applicable), if or (B) adequate and reasonable means do not otherwise exist for determining the Relevant Rate for the applicable Foreign Currency for any determination date(s) or requested Interest Period, as applicable, any Lender (or group of Lenders) pursuant to this Section 2.11, including any determination with respect to a tenor, rate proposed Euro-Currency Loan 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, at any time (including in connection with an existing or proposed Base Rate Loan, or (2) the implementation Administrative Agent or the Required Banks determine that for any reason that the Relevant Rate with respect to a proposed Loan denominated in an Foreign Currency for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Banks of funding such Loan, the Administrative Agent will promptly so notify the Borrowers and each Bank. Thereafter, the obligation of the Banks to make or maintain Loans in the affected currencies, as applicable, or to convert Base Rate Loans to Euro-Currency Loans, shall be suspended in each case to the extent of the affected Euro-Currency Loans or Interest Period or determination date(s), as applicable, until the Administrative Agent (or, in the case of a Benchmark Replacementdetermination by the Required Banks described in clause (2) of this Section 8.1(b)(i), until the Administrative Agent upon instruction of the Required Banks) revokes such notice. Upon receipt of such notice, (i) if the thenBorrowers may revoke any pending request for a Borrowing of, or conversion to or continuation of Euro-current Benchmark is a term rate (including Currency Loans to the Term SOFR Rate) and either (i) any tenor for such Benchmark is not displayed on a screen extent of the affected Euro-Currency Loans or other information service that publishes such rate from time to time Interest Period or determination date(s), as selected by the Administrative Agent in its reasonable discretion or (ii) 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 applicable or, failing that, will be no longer representative, then deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans denominated in Dollars in the Administrative Agent may modify Dollar Equivalent of the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor amount specified therein and (ii) any outstanding affected Euro-Currency Loans, at the Borrowers’ election, shall either (1) be converted into a Committed Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Euro-Currency Loan immediately, in the case of a Multi-Currency Daily Rate Loan or at the end of the applicable Interest Period, in the case of a Multi-Currency Term Rate Loan or (2) be prepaid in full immediately, in the case of an Multi-Currency Daily Rate Loan, or at the end of the applicable Interest Period, in the case of an Multi-Currency Term Rate Loan; provided that if no election is made by the Borrowers (x) in the case of a tenor Multi-Currency Daily Rate Loan, by the date that was removed pursuant is three Business Days after receipt by the Borrowers of such notice or (y) in the case of a Multi-Currency Term Rate Loan, by the last day of the current Interest Period for the applicable Multi-Currency Term Rate Loan, the Borrowers shall be deemed to have elected clause (i1) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenorabove.
Appears in 1 contract
Samples: Credit Agreement (Allegion PLC)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.112.18, ifif prior to the commencement of any Interest Period:
(i) 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 Eurodollar RateAdjusted Term SOFR LIBO Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with interest rate applicable to the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing Loans shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayAlternate Base Rate.
(b) Notwithstanding anything to the contrary hereinherein or in any other Basic Document (and any Hedge Agreement shall be deemed not to be a “Basic Document” for purposes of this Section 2.18), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Basic 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 Basic Document and (y) if a Benchmark Replacement LEGAL02/41783784v7 is determined in accordance with clause (23) 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders and the Borrower without any amendment to all Lenders and the Borrower,to, or further action or consent of any other party to, this Agreement or any other Basic Document so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Basic 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 Basic 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 Basic Document; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (c) shall not be effective unless 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 Administrative Agent has delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with and the Borrower a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..Term SOFR Notice.
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Basic Document.
(de) 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 andChanges, (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 2.112.18, 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 heretoto to this AgreementAgreement or any other Basic Document, except, in each case, as expressly required pursuant to this Section 2.112.18.
(ef) Notwithstanding anything Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Loan to the contrary herein, be made. During any Benchmark Unavailability Period or at any time (including in connection with the implementation of that a Benchmark Replacement), (i) if tenor for the then-current Benchmark is a term rate (including not an Available Tenor, the Term SOFR Rate) and either (i) component of any Interest Rate based upon the then-current Benchmark or such tenor for such Benchmark is Benchmark, as applicable, will not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent be used in its reasonable discretion or (ii) the regulatory supervisor for the administrator any determination 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.Rate. LEGAL02/41783784v7
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
Eurocurrency Borrowing of any Class (a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:including an Optional Currency Swingline Loan):
(i) 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 Eurodollar RateAdjusted Term SOFR LIBO Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided that no Benchmark Transition Event shall have Period or a contingency has occurred at such time; orwhich materially and adversely affects the Relevant Interbank Market;
(ii) the Administrative Agent is advised by a Majority in Interest of the Required Lenders of such Class (or, in the case of any Optional Currency Swingline Loan, by the Swingline Lender) that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or or, if applicable, the Swingline Lender) of making or maintaining their Loans (or its Loan) included in such Eurocurrency Borrowing for such Interest Period;
(iii) the Administrative Agent is advised by a Majority Interest of the Lenders of such Class (or, in the case of Optional Currency Swingline Loans, by the Swingline Lender) that after making all reasonable efforts, deposits of the relevant amount in Dollars or in the Optional Currency (as applicable) for the relevant Interest Period for a Loan to which a LIBO Rate Option applies are not available to such Lender or the Swingline Lender, as applicable, with respect to such Loan in the Relevant Interbank Market; or
(iv) the Administrative Agent is advised by a Majority in Interest of the Lenders of such Class (or, in the case of Optional Currency Swingline Loans, by the Swingline Lender) that the making, maintenance or funding of any Loan to which a LIBO Rate Option applies has been made impractible or unlawful by compliance by such Lender (or the Swingline Lender, as the case may be) in good faith with any Law or any interpretation or application thereof by any Governmental Authority or with any request or directive of any such Governmental Authority (whether or not having the force of Law); then the Administrative Agent shall give notice (which may be telephonic) thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail of such Class as promptly as practicable thereafter and, subject to clause (b) below of this Section 2.14, until (x) the Administrative Agent notifies the Borrower and the Lenders of such Class that the circumstances giving rise to such notice no longer exist, (ix) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing of such Class to, or continuation of any Borrowing of such Class as, a EurodollarTerm Benchmark Eurocurrency Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark such Borrowing shall (I) in the case of a Revolving Loan, be made asinstead be deemed to be an Interest Election Request or a Borrowing Request, continued as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise Borrowing or converted to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(aan ABR Borrowing (A) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the applicable Interest Period applicable Period, as the case may be, if the Lenders may lawfully continue to maintain such Loans or (B) immediately if the Lenders may not lawfully continue to maintain such Loans, or (II) in the case of a Swingline Loan, be converted by repaid in full (A) on the Administrative Agent tolast day of the applicable Interest Period if the Swingline Lender may lawfully continue to maintain such Loans, and (B) immediately if the Swingline Lender may not lawfully continue to maintain such Swingline Loans or (C) immediately if such Swingline Loan has no Interest Period (e.g., a Swingline Loan at the Daily Libor Rate), (y) any Borrowing Request for a Eurocurrency Borrowing of Revolving Loans of such Class shall constitute, be treated as a request for an ABR Borrowing and (z) any Borrowing Request for an Optional Currency Swingline Loan on such daywill be deemed withdrawn.
(b) Notwithstanding anything to the contrary hereinherein (including without limitation the definition of LIBO Rate), upon if the occurrence ofif Administrative Agent determines (which determination shall be final and conclusive, absent manifest error) that either (i)(x) the circumstances set forth in Section 2.14(a)(i) have arisen and are unlikely to be temporary or (y) the circumstances set forth in Section 2.14(a)(i) have not arisen but the applicable supervisor or administrator (if any) of LIBOR or a Benchmark Transition Event Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying the specific date after which the LIBO Rate shall no longer be used for determining interest rates for loans (either of (i)(x) or (i)(y), a “LIBOR Termination Date”), or (ii) the LIBO Rate is no longer a widely recognized benchmark rate for newly originated loans in Dollars in the U.S. market, then the Administrative Agent may (in consultation with the Borrower) choose a replacement index rate (“Replacement Rate”), and, as appropriate, adjustment margin(s) (“Adjustment Margin(s)”) corresponding to each available LIBOR term, to effect, to the extent practicable, an Early Optaggregate all-in Electioninterest rate comparable to the LIBOR-based rate in effect prior to its replacement. The Replacement Rate and Adjustment Margin(s) will be determined with due consideration to the then-prevailing market practice for determining a rate of interest for newly originated syndicated loans in the United States, as applicableand may reflect appropriate adjustments to account for the transition from LIBOR to the Replacement Rate. The Administrative Agent shall promptly notify the Lenders of the Replacement Rate and Adjustment Margin(s), and the Administrative Agent and the Borrower may amend shall enter into an amendment to this Agreement to replace the Eurodollar reflect such Replacement Rate with a Benchmark Replacementand Adjustment Margin(s). Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinin this Agreement or the other Loan Documents (including, the Administrative Agentwithout limitation, in consultation with the BorrowerSection 9.02), 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 amendment shall 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, Agreement so long as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (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 orshall not have received, within ten (10) Business Days of the date a draft of the amendment reflecting such Replacement Rate and Adjustment Margin(s) is provided to the Lenders, a written notice from the Required Lenders stating that such Lenders object to such amendment. Until an amendment reflecting a new Reference Rate and Adjustment Margin(s), if applicableany, any Lender (or group of Lenders) pursuant to is entered into in accordance with this Section 2.112.14(b), including any each advance, conversion and renewal of a Loan under the LIBO Rate Option will continue to bear interest with reference to the LIBO Rate; provided, however, that if the Administrative Agent determines (which determination with respect to a tenorshall be final and conclusive, 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 heretoto this Agreementerror) that a LIBOR Termination Date has occurred, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to then following the contrary herein, at any time (including in connection with the implementation of a Benchmark Replacement)LIBOR Termination Date, (i) if all Revolving Loans as to which the then-current Benchmark is a term rate (including LIBO Rate Option would otherwise apply shall automatically be converted to the Term SOFR Rate) and either (i) 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 (ii) 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 Base Rate Option until such time to remove such unavailable or non-representative tenor that an amendment reflecting a new Reference Rate and Adjustment Margin(s), if any, is entered into and (ii) if a tenor that was removed pursuant to clause (i) above either (i) is subsequently displayed all Swingline Loans shall be repaid in full unless otherwise agreed by the Swingline Lender. For the avoidance of doubt, on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) is notafter the effective date of the Replacement Rate, or is no longerthe aggregate all-in interest payable by the Borrower in respect of the Loans shall be the sum of the Replacement Rate, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacementthe Adjustment Margin(s), then if any, and the Administrative Agent shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenorApplicable Margin.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), ) (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist exist, with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) the regulatory supervisor for the administrator of such Benchmark 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 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans or RFR 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 Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day, be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses paragraphs (b), (c), (d), (e) ), and (f) and (g) of this Section 2.112.13, ifif prior to the commencement of any Interest Period for a Eurodollar Borrowing of any Class:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingBorrowing of any Class that adequate and reasonable means do not exist for ascertaining the Adjusted LIBOTerm SOFR Rate (including because the LIBO ScreenTerm SOFR Reference Rate is not available or published on a current basis) for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate (including because the Term SOFR Reference 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 timeapplicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by a Majority in Interest of the Required Lenders of such Class that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR 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 EurodollarTerm Benchmark Borrowing for such Interest PeriodPeriod or (B) at any time for an RFR Borrowing, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such RFR Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders of such Class by telephone ortelephone, telecopy or electronic mail or facsimile as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders of such Class that the circumstances giving rise to such notice no longer exist, (i) with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing of such Class to, or continuation of any Borrowing of such Class as, a EurodollarTerm Benchmark Eurodollar Borrowing shall be ineffective, and such Borrowing shall be continued as an ABRTerm Benchmark Borrowing and (ii) if any Borrowing Request that for a Eurodollar Borrowing of such Class shall be treated as a request for an ABR Borrowing.that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan of the applicable Class is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders of such Class 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 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan of such Class shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, on such day, and (2) any RFR Loan of such Class shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if a Benchmark Transition Event or Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (232) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required LendersLendersa Majority in Interest of each Class.
(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, with respect to any proposed amendment containing any SOFR-Based Rate, that this paragraph (c) shall not be effective unless 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 Administrative Agent has delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with and the Borrower a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..Term SOFR Notice.
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding Replacement, c) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative AgentAgent will have the right, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 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 Agreement 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11Loan Document.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Alternate Rate of Interest. (a) If at least two Business Days prior to the commencement of any Interest Period for a Eurodollar Term Benchmark Borrowing:
(a) Subject , or at any time with respect to clauses (b), (c), (d), (e) and (f) of this Section 2.11, ifa Daily Simple SOFR Borrowing:
(i) 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 Term SOFR, Daily Simple SOFR, the Eurodollar RateAdjusted Adjusted Term SOFR Rate, the Adjusted Daily Simple SOFR Rate, the Adjusted Eurocurrency Rate or the Eurocurrency Rate, or the relevant component thereof, as applicable (including because the Term SOFR Reference a Screen Rate is not available or published on a current basis), ) for the applicable currency and/or such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Administrative Agent is advised by Xxxxxxx representing a Majority in Interest of the Required Lenders affected Class that Term SOFR, Daily Simple SOFR, the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark BorrowingAdjusted Daily Simple SOFR Rate, the Adjusted Term SOFR Rate, the Adjusted Eurocurrency Rate or the Eurocurrency Rate, or the relevant component thereof, as applicable, for the applicable currency and/or 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/or such Interest Period; , then the Administrative Agent shall give written notice thereof to the Borrower and the Lender Lenders of such Class by hand delivery, facsimile or Lenders by telephone or, telecopy or other electronic mail transmission as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders of such Class that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, :
1. any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing shall be ineffective, and (iiin the case of Initial Term Loans) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Requestof a Type that is affected by the foregoing circumstances (each, as applicable, for an ABR “Affected Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings ”) shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time ineffective 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.:
Appears in 1 contract
Samples: First Lien Credit Agreement (Clarios International Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a1) Subject to clauses (b2), (c3), (d4), (e5) and (f6) of this Section 2.11, if:
(ia) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining Daily Simple SOFR; or
(iib) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter 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, (i) and (yx) the Borrower delivers may revoke any pending request for a new Interest Election Request in accordance with Borrowing of, or continuation of a Term Benchmark Borrowing or, failing that, the terms Borrower will be deemed to have converted any such request into a request for Borrowing of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03conversion to, and any Interest Election Request interest election request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Term Benchmark Borrowing, suchTerm Benchmark Borrowing shall be made asinstead in each case, instead be deemed to be a conversion, an Interest Election Request interest election request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of Section 2.11(1)(a) or (b) above or (y) an ABR BorrowingBorrowing if Daily Simple SOFR also is the subject of Section 2.11(1)(a) or (b) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.11(1) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 interest election request in accordance with the terms of Section 2.05 2.04 or a new Borrowing Request in accordance with the terms of Section 2.032.02, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, Loan be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of Section 2.11(1)(a) or (b) above or (y) an ABR Loan if Daily Simple SOFR also is the subject of Section 2.11(1)(a) or (b) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b2) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Lenders; provided that, with respect Lenders of each Class stating that such Lenders object 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..(or amendment and restatement).
(c3) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d4) The Administrative Agent will promptly notify the Borrower and the Lenders of (ia) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (iib) the implementation of any Benchmark Replacement, (iiic) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (ivd) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f5) below and (ve) 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(e5) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (ia) if the then-current Benchmark is a term rate (including the Term SOFR RateSOFR) and either (i) 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 (ii) 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 (iib) if a tenor that was removed pursuant to clause (ia) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(6) 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 or RFR 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.11, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan (to the extent subject of a Benchmark Transition Event) shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:AMERICAS 111453311
(ai) Subject to clauses (bii), (ciii), (div), (ev) and (fvi) of this Section 2.112.10(d), if:
(i1) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate Rate, the Term SOFR Rate, Daily Simple SOFR or Daily Simple SOFR (including because the Term SOFR Reference Rate or Daily Simple SOFR 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
(ii2) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, the Adjusted Term SOFR Rate or Daily Simple SOFR for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans Borrowings (or its LoanBorrowings) included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant benchmark rate and (y) the Borrower delivers a new Interest Election Request Notice of Conversion or Continuation in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.6, any Interest Election Request Notice of Conversion or Continuation that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing of SOFR Loans of the applicable Type may be revoked by the Borrower and, failing that, shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request a Notice of Conversion or a Borrowing Request, as applicable, Continuation for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permittedLoan. Furthermore, if any Term Benchmark SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.10(d)(i) with respect to a Relevant the Term SOFR Rate applicable to such Term Benchmark Loanor Daily Simple SOFR, as applicable, 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 rate and (y) the Borrower delivers a new Interest Election Request Notice of Conversion or Continuation in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.6, any Term Benchmark such SOFR Loan of the applicable Type shall on the last day of the Interest Period applicable to such LoanSOFR 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 on such dayLoan.
(bii) Notwithstanding anything to the contrary hereinherein or in any other Credit Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..AMERICAS 111453311
(ciii) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein (including in Section 13.1 of this Agreement) or in any other Credit Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Credit Document.
(div) 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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fv) 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 2.112.10(d), 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 heretoto to this AgreementAgreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.112.10(d).
(ev) Notwithstanding anything to the contrary hereinherein 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 (ia) 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 (iib) 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 (ia) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iib) 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 shall may modify the definition of “Interest Period” 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 request for a Borrowing of, conversion to or continuation of Term SOFR Loans 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 2.10(d), any Term SOFR Loan shall on the last day of the Interest Period applicable to such Revolving AMERICAS 111453311 Credit 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, a ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Eurocurrency Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error), prior to ) that adequate and reasonable means do not exist for ascertaining the commencement of any Eurocurrency Rate for such Eurocurrency Borrowing for such Interest Period for a Term Benchmark Borrowingand the circumstances described in Section 2.13(b)(i) do not apply; or (ii) at any time, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate XXXXX Rate; or (including because the Term SOFR Reference 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
(iiiii) the Administrative Agent is advised by the Required Lenders that (A) the Eurodollar , prior to the commencement of any Interest Period Eurocurrency Rate for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate such Eurocurrency Borrowing 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 PeriodPeriod or (B) the XXXXX Rate 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; then the Administrative Agent shall give written notice thereof to the Lead Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Lead Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing in the Eurocurrency Rate that is unavailable because the conditions described in clauses (a) and (b) above have been satisfied (such unavailable rate, the “Unavailable Rate”), shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar BorrowingEurocurrency Borrowing or a XXXXX Borrowing with an Unavailable Rate, suchTerm Benchmark (x) if such Borrowing Request is for a Borrowing in dollars or if an alternative rate of interest is not in effect pursuant to clause (y) below, such Borrowing shall be made asinstead be deemed to be as an Interest Election ABR Borrowing (in dollars) or (y) if such Borrowing Request or is for a Borrowing Requestin an Alternative Currency, as applicablethe Administrative Agent may, in consultation with the Lead Borrower, propose to the Lead Borrower in writing an alternative interest rate for an ABR Borrowing; provided the affected Borrowing that, if accepted by the circumstances giving rise Lead Borrower in a writing delivered to such notice affect fewer than allonly the Administrative Agent within one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date Business Day of the Lead Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) such written proposal, shall apply with respect to a Relevant Rate applicable to such Term Benchmark Loan, then the affected Borrowing until (x1) the Administrative Agent notifies the Lead Borrower and the Lenders that the circumstances giving rise to such the notice described above no longer exist and exist, (y2) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent tois advised by the Required Lenders that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loan (or its Loans) included in the affected Borrowing or (3) any Lender determines that any law or regulation 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 authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Lead Borrower written notice thereof; provided that, notwithstanding the foregoing, all Eurocurrency Rates (other than any then applicable Unavailable Rates) shall constitute, remain available for Borrowings until such rate shall be an ABR Loan on such dayUnavailable Rate.
(b) Notwithstanding anything to the contrary hereinin this Agreement or any other Loan Documents, upon if the occurrence ofif Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Required Lenders notify the Administrative Agent (with a Benchmark Transition Event copy to the Lead Borrower) that the Required Lenders have determined, that:
(i) adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate for any requested Interest Period, including, without limitation, because the Eurocurrency Rate is not available or an Early Opt-in Electionpublished on a current basis and such circumstances are unlikely to be temporary; or
(ii) the supervisor for the administrator of the Eurocurrency Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Eurocurrency Rate shall permanently or indefinitely 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 Lead Borrower may amend this Agreement to replace the Eurodollar Eurocurrency 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 Eurocurrency Rate and that gives due consideration to the then prevailing market convention for determining a Benchmark Replacement. Any rate of interest for syndicated loans in the United States at such time (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 9.2, any such amendment with respect to a Benchmark Transition Event will 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 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 in respect of such Benchmark setting and subsequent Benchmark settings Lead Borrower without any amendment to, or further action or consent of any other party to, to this Agreement and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Dateunless, such Benchmark Replacement will replace such Benchmark for all purposes hereunder 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided prior to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 do not accept such amendment; 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 purposes of this Agreement. No replacement of Eurodollar If no LIBOR Successor Rate with a Benchmark Replacement will occur prior to has been determined and the applicable Benchmark Transition Start Date..
circumstances under clause (ci) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinabove exist, the Administrative Agent, in consultation with 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 Company and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Loans shall be suspended (to the extent of the affected Eurocurrency Loans or Interest Periods). Upon receipt of such notice, the Borrowers may revoke any pending request for a borrowing of, conversion to or continuation of Eurocurrency Loans (ito the extent of the affected Eurocurrency Loans or Interest Periods for the applicable currency) 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 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 selectionfailing that, will be conclusive and binding absent manifest error and may be made deemed to have converted such request into a request for a borrowing of ABR Loans in its or their sole discretion and without consent from any other party heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
the amount specified therein (e) Notwithstanding anything to the contrary herein, at any time (including in connection with the implementation of a Benchmark Replacementextent applicable), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Alternate Rate of Interest. (a) If at least two Business Days prior to the commencement of any Interest Period for a Eurodollar Term Benchmark Borrowing:
(a) Subject , or at any time with respect to clauses (b), (c), (d), (e) and (f) of this Section 2.11, ifa Daily Simple SOFR Borrowing:
(i) 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 Term SOFR, Daily Simple SOFR, the Eurodollar RateAdjusted Adjusted Term SOFR Rate, the Adjusted Daily Simple SOFR Rate, the Adjusted Eurocurrency Rate or the Eurocurrency Rate, or the relevant component thereof, as applicable (including because the Term SOFR Reference a Screen Rate is not available or published on a current basis), ) for the applicable currency and/or such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Administrative Agent is advised by Xxxxxxx representing a Majority in Interest of the Required Lenders affected Class that Term SOFR, Daily Simple SOFR, the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark BorrowingAdjusted Daily Simple SOFR Rate, the Adjusted Term SOFR Rate, the Adjusted Eurocurrency Rate or the Eurocurrency Rate, or the relevant component thereof, as applicable, for the applicable currency and/or 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/or such Interest Period; , then the Administrative Agent shall give written notice thereof to the Borrower and the Lender Lenders of such Class by hand delivery, facsimile or Lenders by telephone or, telecopy or other electronic mail transmission as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders of such Class that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, :
1. any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing shall be ineffective, and (iiin the case of Initial Term Loans) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Requestof a Type that is affected by the foregoing circumstances (in the case of the RC Facility) (each, as applicable, for an ABR “Affected Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings ”) shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time ineffective 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.:
Appears in 1 contract
Samples: First Lien Credit Agreement (Clarios International Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
if (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark BorrowingSOFR Loan, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate (including because the Term SOFR Reference 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
or (ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark BorrowingSOFR Loan, the Adjusted Term SOFR 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; , then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Term SOFR Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Term SOFR Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsBorrowing, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark LoanSOFR, 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayLoan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (including any related adjustments) for all purposes hereunder and under any other 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 other 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 RateSOFR) and either (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term SOFR Borrowing, 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 request for a Term SOFR Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. 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 Term SOFR, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, any Term SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Samples: 364 Day Delayed Draw Term Loan Credit Agreement (Illumina, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11Section 2.19, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice of Interest Rate Election Request in accordance with the terms of Section 2.05 2.07 or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.02, (1) any Notice of Interest Rate Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing and any Notice of Borrowing that requests a Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Notice of Interest Rate Election Request or a Borrowing RequestNotice of Borrowing, as applicable, for an ABR Base Rate Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with 2.19(a)with respect to a Relevant the Term SOFR Rate applicable to such Term Benchmark 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 Notice of Interest Rate Election Request in accordance with the terms of Section 2.05 2.07 or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.02, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 on such dayconstitute a Base Rate Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Synthetic Purchase Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.19), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.19, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.19.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing, 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to a Base Rate Borrowing. 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 Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate. Furthermore, if any Term Benchmark 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 applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.19, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided thatprovided, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such the Adjusted Term Benchmark LoanSOFR Rate, 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayLoan.
(b) Notwithstanding anything to the contrary hereinherein 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), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. 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 Benchmark 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 Adjusted Term SOFR Rate, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Etsy Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if3.07:
(i) if the Administrative Agent determines (which determination shall be conclusive absent manifest demonstrable error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR any Relevant Rate (including because the Term SOFR Reference Relevant Screen Rate is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Daily Simple XXXXX or RFR for the applicable Agreed Currency; or
(ii) if the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Relevant Rate for the applicable Agreed 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 Agreed Currency and such Interest PeriodPeriod or (B) at any time, the applicable Daily Simple XXXXX or RFR for the applicable Agreed 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 the applicable Agreed Currency, as applicable; then the Administrative Agent shall give notice thereof to the Borrower Company and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark (which notice shall be given by the Administrative Agent promptly after such circumstances cease to exist), (iA) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request Loan Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (iiB) if any Borrowing Request that Loan Notice requests a Eurodollar BorrowingTerm Benchmark Borrowing in Dollars, suchTerm Benchmark such Borrowing shall be made asinstead as a Base Rate Loan and (C) if any Loan Notice requests a Term Benchmark Borrowing or an RFR Borrowing for the relevant rate above in an Applicable Currency, then such request shall be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowingineffective; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsBorrowing, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the BorrowerCompany’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a3.07 (a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist and with respect to the relevant Benchmark (ywhich notice shall be given by the Administrative Agent promptly after such circumstances cease to exist), (i) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any if such Term Benchmark Loan shall is denominated in Dollars, then on the last day of the Interest Period applicable to such LoanLoan (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 a Base Rate Loan denominated in Dollars on such day., (ii) if such Term Benchmark Loan is denominated in any Alternative Currency, 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) bear interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable Rate; provided that, if the Administrative Agent determines reasonably and in good faith (which determination shall be conclusive and binding absent demonstrable error) that the Central Bank Rate for the applicable Agreed Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at the Company’s election prior to such day: (A) be prepaid by the applicable Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Alternative Currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time or (iii) if such RFR Loan is denominated in any Alternative Currency, then such Loan shall bear interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable Rate; provided that, if the Administrative Agent determines reasonably and in good faith (which determination shall be conclusive and binding absent demonstrable error) that the Central Bank Rate for the applicable Agreed Currency cannot be determined, any outstanding affected RFR Loans denominated in any Alternative Currency, at the Company’s election, shall either (A) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Applicable Currency) immediately or (B) be prepaid in full immediately
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Hedging Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 3.07), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current then‐current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” with respect to 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 (2) of the definition of “Benchmark Replacement” with respect to any Agreed Currency 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 Chicago time) on the fifth (5th) 5th Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided by the Administrative Agent to the Lenders and the Company without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(ci) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document. No Loan Party shall be required to pay any “amendment fee” or other similar fee in connection with an amendment or other modification to this Agreement or any other Loan Document made solely in connection with the replacement of any Benchmark or any proposed Benchmark Replacement Conforming Changes related thereto.
(ii) 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 Canadian Dollars, if a Term XXXXX Reelection 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)(ii) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Company a Term XXXXX Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term XXXXX Notice after the occurrence of a Term XXXXX Reelection Event and may do so in its sole discretion.
(d) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.113.07, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence 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 demonstrable error and may be made in its or their sole discretion and without consent from any other party heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.113.07.
(e) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-then‐ current Benchmark is a term rate (including the Term SOFR Rate, the EURIBO Rate, the TIBO Rate, the CDOR Screen RateTerm XXXXX or the BBSY Screen Rate) and either (iA) 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 and consistent with such selection generally under other syndicated credit facilities for which BMO acts as administrative agent or (iiB) 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 non‐representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Company’s receipt of notice from the Administrative Agent of the commencement of a Benchmark Unavailability Period and until a Benchmark Replacement is determined in accordance with this Section 3.07 for (i) Dollars, the Company may revoke any request for a borrowing of, conversion to or continuation of Term Benchmark Loans or RFR Loans to be made, converted or continued during any such Benchmark Unavailability Period and, failing that, the Company will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans and (ii) any other Agreed Currency, the obligation of the Lenders to make or maintain Loans in such Agreed Currency shall be suspended (and the Company may revoke any request for a Borrowing of, conversion to or continuation of Loans to be made in such Agreed Currency during the Benchmark Unavailability Period). During any Benchmark Unavailability Period for Dollars or at any time that a tenor for the then‐current Benchmark for Dollars is not an Available Tenor, the component of Base Rate based upon the then‐current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate. Furthermore, if any Term Benchmark Loan in any Alternative Currency is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, then (until such time as a benchmark replacement for such Alternative Currency is implemented pursuant to this Section 3.07) 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 Company’s election prior to such day: (A) be prepaid by the applicable Borrower on such day or (B) be converted by the Administrative Agent to, and shall constitute, a Base Rate 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 Company does not so prepay such Loan on such day by 2:00 p.m., local time, the Administrative Agent is authorized to effect such conversion of such Term Benchmark Loan into a Base Rate Loan denominated in Dollars). If any RFR Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such RFR Loan, then such Loan shall, on the next Interest Payment Date applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), bear interest at the Central Bank Rate for Sterling plus the Applicable Rate; provided that, if the Administrative Agent determines reasonably and in good faith (which determination shall be conclusive and binding absent demonstrable error) that the Central Bank Rate for Sterling cannot be determined, any outstanding affected RFR Loans denominated in Sterling, at the Company’s election, shall either (A) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of Sterling) on the next applicable Interest Payment Date (or the next succeeding Business Day if such day is not a Business Day) or (B) be prepaid in full immediately on the next applicable Interest Payment Date (or the next succeeding Business Day if such day is not a Business Day).
Appears in 1 contract
Samples: Credit Agreement (Brady Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including including, without limitation, because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or Loan) included in such Borrowing for such Interest Period Period, or (B) at any time, the applicable Adjusted Daily Simple SOFR 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 PeriodBorrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail through any Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (1) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (2) an ABR Borrowing; provided that, Borrowing if the circumstances giving rise to such notice affect fewer than allonly one Types Adjusted Daily Simple SOFR also is the subject of Borrowings, then xxxxxx other Types of Borrowings shall be permittedSection 2.14(a)(i) or (ii) above. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein 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), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fSection 2.14(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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 with respect to any Relevant Rate, 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 (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Eurocurrency Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBO Rate, as applicable (including including, without limitation, because the Term IBA LIBORTerm SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate or the LIBO 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, or telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests requirests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm EurocurrencyTerm Benchmark Borrowing shall be ineffective, ineffective and (iiB) if any Borrowing Request that requests a Eurodollar Eurocurrency Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark 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 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, constitute (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to the contrary hereinherein 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), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Term Loan Agreement (Anywhere Real Estate Group LLC)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such the Adjusted Term Benchmark LoanSOFR Rate, 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 on such dayLoan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. 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 tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate. Furthermore, if any Term Benchmark 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 Adjusted Term SOFR Rate, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (ZimVie Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(ai) Subject to clauses (bii), (ciii), (div), (ev) and (fvi) of this Section 2.112.6A, if:
(ia) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(iib) the Administrative Agent is advised by the Required Requisite Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request Conversion/Continuation Notice in accordance with the terms of Section 2.05 2.2F or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.1B, any Interest Election Request Conversion/Continuation Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing and any Notice of Borrowing that requests a Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request a Conversion/Continuation Notice or a Borrowing RequestNotice of Borrowing, as applicable, for (x) an ABR BorrowingRFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.6A(i) or (ii) above or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.6A(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.6A(i) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 Conversion/Continuation Notice in accordance with the terms of Section 2.05 2.2F or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.1B, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an ABR RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.6A(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.6A(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
(bii) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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. (p.m., New York City time) , on the fifth (5th) Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Requisite 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(ciii) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(div) The Administrative Agent will promptly notify the Borrower and the Lenders of (ia) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (iib) the implementation of any Benchmark Replacement, (iiic) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (ivd) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fvi) below and (ve) 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 2.112.6A, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Credit Agreement (Assurant, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) ), and (f) and (g) of this Section 2.11subsection 3.7, ifif prior to the commencement of any Interest Period for a EurocurrencyTerm Benchmark Borrowing:
(i) 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 Eurodollar RateAdjusted Term Adjusted LIBOR Rate or the LIBOR RateTerm SOFR Rate (including because the Term LIBOR ScreenTerm SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to Adjusted LIBOR Rate or the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOR RateTerm SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 subsection 3.2 or a new Borrowing Request in accordance with the terms of Section 2.03subsection 2.3, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing shall be ineffectiveineffective and such Revolving Borrowing (unless prepaid) shall be continued as, or converted to, an ABRTerm Benchmark Borrowing and (iiB) if any Borrowing Request that requests a Eurodollar BorrowingEurocurrencyTerm Benchmark Revolving Borrowing in Dollars, suchTerm Benchmark Borrowing shall be made asinstead suchshall instead be deemed to be an Interest Election Request or a Borrowing Requestshall 107 [[5629054]] be made asRequest, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term EurocurrencyTerm Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(asubsection 3.7(a) with respect to a Relevant Rate applicable to such Term Benchmark Loanthe LIBOR RateTerm SOFR, 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 2.05 subsection 3.2 or a new Borrowing Request in accordance with the terms of Section 2.03subsection 2.3, any Term Benchmark Loan shall then on the last day of the Interest Period applicable to such LoanLoan (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 hereinherein 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), upon the occurrence ofif if a Benchmark Transition Event or Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (232) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document and subject to the proviso below in this paragraph, the Administrative Agent, in consultation with the Borrower, will have the right to make if a Term SOFR Transition Event and its related Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything Date have occurred prior to the contrary hereinReference 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 amendments implementing Loan Document in respect of such Benchmark Replacement Conforming Changes will become effective setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to to, this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) Agreement or any occurrence of a Benchmark Transition Event or an Early Opt-in Electionother Loan Document; provided that, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to this clause (fc) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may shall not be made by effective unless 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything has delivered to the contrary herein, at any time (including in connection with Lenders and the implementation of Borrower a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 Notice. For the Administrative Agent in its reasonable discretion or (ii) the regulatory supervisor for the administrator avoidance 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 representativedoubt, 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify not be required to deliver a Term SOFR Notice after the definition occurrence of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenora Term SOFR Transition Event and may do so in its sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Frontdoor, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including including, without limitation, because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such time; oradequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple RFR or Daily Simple SOFR for an RFR Term Loan;
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that the Adjusted Term SOFR Rate for such the applicable 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, or (B) at any time, the applicable Adjusted Daily Simple RFR for an RFR Term Loan will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Term Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail through any Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and with respect to the relevant Benchmark, (y1) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple RFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple RFR also is the subject of Section 2.11(a)(i) or (ii) above, on such day, and (2) any RFR Term Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Term Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In Notwithstanding anything to the contrary herein or in any other Loan Document, in connection with the implementation of a any Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, Agent (in consultation with the Borrower, ) will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action by or consent of any other party to this AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.111 or in any related definitions.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR Borrowing and any 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 (i) with respect to any Term Benchmark Borrowing, an RFR Borrowing so long as the Adjusted Daily Simple RFR is not the subject of a Benchmark Transition Event or (ii) an ABR Borrowing if the Adjusted Daily Simple RFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR Term 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 Term Benchmark Loan or RFR Term Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.11, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple RFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple RFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Term Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Term Loan.
Appears in 1 contract
Samples: Credit Agreement (BKV Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.11, 8.01 if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate, the LIBOTerm SOFR Rate, the Adjusted EURIBOR Rate, the EURIBOR Rate, the Adjusted XXXXX Xxxx, the TIBOR Rate or the Adjusted CDOR Rate, as applicable (including because the Term SOFR Reference Relevant Screen Rate is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining XXXXX or Daily Simple XXXXX; or
(ii) the Administrative Agent is advised by the Required Lenders Banks (or in the case of a Money Market LIBORTerm SOFR Loan, the Bank that the Eurodollar , is required to make such Loan) that (A) prior to the commencement of for any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate, the LIBOTerm SOFR Rate, the Adjusted EURIBOR Rate, the EURIBOR Rate, the Adjusted XXXXX Xxxx, the XXXXX Xxxx or the Adjusted CDOR Rate for the applicable Agreed Currency and such Interest Period will not adequately and fairly reflect the cost to such Lenders Banks (or LenderBank) of making or maintaining their Loans (or its Loan) included in such Borrowing for the applicable Agreed Currency and such Interest PeriodPeriod or (B) at any time, the applicable Daily Simple XXXXX or XXXXX, as applicable, for Pounds Sterling, will not adequately and fairly reflect the cost to such Banks (or Bank) of making or maintaining their Loans (or its Loan) included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower Co-Borrowers and the Lender or Lenders Banks by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Co-Borrowers and the Banks 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 Term Benchmark Borrowing shall be ineffective, (B) if any Notice of Borrowing requests a Term Benchmark Revolving Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing, (C) any request by a Co-Borrower for a Money Market LIBORTerm SOFR Loan shall be ineffective; and (D) if any Notice of Borrowing requests a Term Benchmark Borrowing or a XXXXX Borrowing for the relevant rate above in an Available Currency, then such request shall be ineffective; provided that (x) if the circumstances giving rise to such notice do not affect all the Banks, then requests by a Co-Borrower for Money Market LIBORTerm SOFR Loans may be made to Banks that are not affected thereby and (y) if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or XXXXX Loan in any Available Currency is outstanding on the date of the Co-Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 8.01(a) with FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, Page 72 3ACTIVE 221393034 respect to a Relevant Rate applicable to such Term Benchmark Loan or XXXXX Loan, then until the Administrative Agent notifies the Co-Borrower and the Lenders Banks that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to denominated in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark LoanDollars, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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, (ii) in the case of a Term Benchmark Loan denominated in any Available Currency, 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) bear interest at the Central Bank Rate for the applicable Available Currency plus the Applicable Rate; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Available Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Available Currency other than Dollars shall, at the Co-Borrowers election prior to such day: (A) be prepaid by the Co-Borrowers on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Available Currency other than Dollars shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time or (iii) any such XXXXX Loan shall bear interest at the Central Bank Rate for Pounds Sterling plus the Applicable Rate; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Pounds Sterling cannot be determined, any outstanding affected XXXXX Loans, at the Co-Borrower’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Amount of such Available Currency) immediately or (B) be prepaid in full immediately.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 8.01), upon the occurrence ofif if a Benchmark Transition Event or Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 (23) of the definition of “Benchmark Replacement” with respect to any Agreed Currency 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders Banks without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders Banks comprising the Required Lenders; provided thatBanks.
(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 any proposed amendment containing any SOFR-Based Ratea Loan denominated in Dollars, the Lenders shall be entitled to object only if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Benchmark Replacement Adjustment contained therein. Any such amendment with Reference Time in respect to an Early Optof any setting of the then-in Election will become effective on current Benchmark, then 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 Eurodollar Rate with a applicable Benchmark Replacement will occur prior to replace the applicable then-current Benchmark Transition Start Date..
(c) In connection with the implementation for all purposes hereunder or under any Loan Document in respect of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to to, this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) Agreement or any occurrence of a Benchmark Transition Event or an Early Opt-in Electionother Loan Document; provided that, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to this clause (fc) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may shall not be made by effective unless 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything has delivered to the contrary herein, at any time (including in connection with Banks and the implementation of Co-Borrowers a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 Notice. For the Administrative Agent in its reasonable discretion or (ii) the regulatory supervisor for the administrator avoidance 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 representativedoubt, 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify not be required to deliver a Term SOFR Notice after the definition occurrence of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenora Term SOFR Transition Event and may do so in its sole discretion.
Appears in 1 contract
Alternate Rate of Interest. (a1) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject Eurocurrency BorrowingSubject to clauses (b2), (c3), (d4), (e5) and (f6) of this Section 2.11, if:
: (ia) the Administrative Agent determines (which determination shall willshall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBO Rate or the LIBO Rate, as applicableTerm SOFR Rate (including because the Term LIBO ScreenTerm SOFR Reference Rate is not available or published on a current basis), for such Interest PeriodPeriod or (B) at any time, that adequate and reasonable means do not exist for ascertaining Daily Simple SOFR; provided that no Benchmark Transition Event shall have occurred at such time; or
or 100 US-DOCS\97700238.15141444430.9 (iib) the Administrative Agent is advised by the Required Lenders that the Eurodollar Adjusted LIBO Rate or the LIBO Rate, as applicable,(A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate 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 Loan) included in such Borrowing for such Interest Period or (B) at any time, Daily Simple SOFR 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 PeriodBorrowing; then the Administrative Agent shall willshall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, facsimile transmission or e-telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (ia) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request with respect to the relevant Benchmark, (x) the Borrower may revoke any pending request for a Borrowing of, or continuation of a Term Benchmark Borrowing or, failing that, the Borrower will be deemed to have converted any such request into a request for Borrowing of or conversion to, and any interest election request that requests the conversion of any applicable Borrowing to, or continuation of any such Borrowing as, a EurodollarTerm Eurocurrency Borrowing will be ineffective and such Borrowing will be converted to or continued asTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Term Benchmark Borrowing, suchTerm Benchmark Borrowing shall be made asinstead in each case, instead be deemed to be a conversion, an Interest Election Request interest election request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of Section 2.11(1)(a) or (b) above or (y) an ABR BorrowingBorrowing if Daily Simple SOFR also is the subject of Section 2.11(1)(a) or (b) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(aSection 2.11(1) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 interest election request in accordance with the terms of Section 2.05 2.04 or a new Borrowing Request in accordance with the terms of Section 2.032.02, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to thereto an ABR Borrowing and (b) if any Borrowing Request requests a Eurocurrency Borrowing, such Loan, Borrowing will be made as an ABR Xxxxxxxxx.xx such Loan be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of Section 2.11(1)(a) or (b) above or (y) an ABR Loan if Daily Simple SOFR also is the subject of Section 2.11(1)(a) or (b) above, on such day., and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan. 101 US-DOCS\97700238.15141444430.9
(b2) Notwithstanding anything If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (1)(a) have arisen and such circumstances are unlikely to be temporary or (ii) the contrary hereincircumstances set forth in clause (1)(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, upon the occurrence ofif a Benchmark Transition Event or an Early Opt-in Election, as applicable, then the Administrative Agent and the Borrower may amend 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 (or amendment and restatement) to this Agreement to replace reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the Eurodollar Rate with avoidance of doubt, such related changes shall not include a Benchmark Replacementreduction 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. Any Notwithstanding anything to the contrary in Section 10.08, such amendment with respect (or amendment and restatement) shall become effectiveNotwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 shallhas not have received, by within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, aby such time, written notice of fromof objection to such proposed amendmentBenchmark Benchmark Replacement 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 of anyeach Class stating that such Required Lenders accept object to such amendment. No replacement of Eurodollar Rate amendment (or amendment and restatement); provided that any such objection will only be effective with a Benchmark Replacement will occur prior respect to the applicable Benchmark Transition Start Date..Class of Term Loans. Until an alternate rate of interest shall be determined in accordance with this clause (2) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.11(2), 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 102 US-DOCS\97700238.15141444430.9
(c3) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d4) The Administrative Agent will promptly notify the Borrower and the Lenders of (ia) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii1) the implementation of any Benchmark Replacement, (iii2) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv3) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f6) below and (v4) 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(e5) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (ia) if the then-current Benchmark is a term rate (including the Term SOFR RateSOFR) and either (ia) 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 (iib) 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 (ii5) if a tenor that was removed pursuant to clause (i) above either (ia) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iib) 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 shall may modify the definition 103 US-DOCS\97700238.15141444430.9 of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark Borrowingborrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowingborrowing, the Adjusted Term SOFR Rate or the Term SOFR 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 borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request Notice of Borrowing in accordance with the terms of Section 2.05 or a new Borrowing 2.6, (1) any Request in accordance with the terms of Section 2.03, any Interest Election Request for Conversion/Continuation that requests the conversion of any Borrowing Base Rate Loan to, or continuation of any Borrowing Base Rate Loan as, a EurodollarTerm Term Benchmark borrowing and any Request for Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing Revolving borrowing shall be made asinstead instead be deemed to be an Interest Election a Request for Conversion/Continuation or a Borrowing RequestRequest for Borrowing, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitteda Base Rate Loan. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan2.14(a), 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 for Borrowing in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.6, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanTerm 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 on such daya Base Rate Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Obligation shall be deemed to be a Loan Document for purposes of this Section 2.14), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for (1) a Term Benchmark borrowing into a request for a borrowing of or conversion to a Base Rate 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 Benchmark 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 Section 2.14, any Term Benchmark Loan shall 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), be converted by the Agent to, and shall constitute a Base Rate Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) ), and (f) and (g) of this Section 2.118.02, ifif prior to the commencement of any Interest Period for a Euro-Dollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the London Interbank Offered Rate, as applicable (including because the Term LIBO ScreenTerm SOFR Reference 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 (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate or the London Interbank Offered 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice of Interest Rate Election Request in accordance with the terms of Section 2.05 2.03 or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.02, (A1) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Euro-DollarTerm Benchmark Borrowing shall be ineffective, ineffective and (iiB) if any Notice of Borrowing Request that requests a Eurodollar Euro-Dollar Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead as anTerm Benchmark Borrowing shall instead be deemed to be an Interest Election Request or a Borrowing RequestNotice of Borrowing, as applicable, for (x) an ABR RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 8.02(a)(i) or (ii) above or (y) an Base Rate Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 8.02(a)(i) or (ii) above and (2) any Notice of Borrowing that requests an RFR Borrowing shall instead be deemed to be a Notice of Borrowing, as applicable, for a Base Rate Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx other Types TypeTypes of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a8.02(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.03 or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.02, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an ABR RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 8.02(a)(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR also is the subject of Section 8.02(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (23) 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) Domestic Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document and subject to the proviso below in this paragraph, the Administrative Agent, in consultation with the Borrower, will have the right to make if a Term SOFR Transition Event and its related Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything Date have occurred prior to the contrary hereinReference 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 amendments implementing Loan Document in respect of such Benchmark Replacement Conforming Changes will become effective setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to to, this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) Agreement or any occurrence of a Benchmark Transition Event or an Early Opt-in Electionother Loan Document; provided that, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to this clause (fc) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may shall not be made by effective unless 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything has delivered to the contrary herein, at any time (including in connection with Lenders and the implementation of Borrower a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 Notice. For the Administrative Agent in its reasonable discretion or (ii) the regulatory supervisor for the administrator avoidance 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 representativedoubt, 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or not be required to deliver a Term SOFR Notice after such time to reinstate such previously removed tenora Term SOFR Transition Event and may do so in its sole discretion.
Appears in 1 contract
Samples: Loan Modification and Extension Agreement (Martin Marietta Materials Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
SECTION 6.11. (a) Subject to clauses (b), (c), (d), (e), and (f) and (fg) of this Section 2.11, ifif prior to the commencement of any Interest Period for a Eurocurrency Borrowing::
(i) the Administrative Agent reasonably the Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted LIBO Rate Term SOFR Rate or the LIBO Rate, as applicable Term SOFR (including because the LIBO Screen Term SOFR Reference 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 (B) at any time, if applicable, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted LIBO Rate or the LIBO Rate, as applicable, Term SOFR 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 Eurocurrency Borrowing for such Interest PeriodPeriod or (B) at any time, if applicable, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice (which may be telephonic and confirmed by facsimile or electronic communication) thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter thereafter. Upon receipt of such notice and, the 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 until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.03 or Section 2.05, (A) any Interest Election Borrowing Request that requests the Borrowing of, conversion of any Borrowing to, to or continuation of any Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing shall be ineffective, and such Borrowing shall be continued as an ABR Borrowing, and (iiB) if any Borrowing Request that requests for a Eurodollar Borrowing, suchTerm Eurocurrency Borrowing shall be treated as a request for an ABR Borrowinga Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, Request for (A) an RFR Borrowing so long as applicable, for the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (B) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.03 or Section 2.05, (A) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (1) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (2) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above on such day and (B) any RFR Loan shall on and from such day be converted by the Agent to, and shall constitute, an ABR Loan on such dayLoan.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Credit Agreement (Madison Square Garden Sports Corp.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent reasonably determines (which determination shall be conclusive and binding absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate, the Term SOFR Rate, the Adjusted EURIBO Rate, the EURIBO Rate or the CDOR Rate (including because the Term SOFR Reference Relevant Screen Rate is not available or published on a current basis), ) for the applicable currency and such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple RFR, Daily Simple RFR or RFR for the applicable Agreed Currency; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate, the Adjusted EURIBO Rate or the CDOR Rate for the applicable Agreed 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 Agreed Currency and such Interest PeriodPeriod or (B) at any time, the applicable Adjusted Daily Simple RFR for the applicable Agreed Currency 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; then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the applicable Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Revolving Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing denominated in Dollars so long as the Adjusted Daily Simple RFR for Dollar Borrowings is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple RFR for Dollar Borrowings also is the subject of Section 2.14(a)(i) or (ii) above, (B) for Loans denominated in Canadian Dollars, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Revolving Borrowing shall instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for a Loan that bears interest at the Canadian Prime Rate plus the Applicable Spread applicable to ABR Loans and (C) for Loans denominated in a Foreign Currency other than Canadian Dollars, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing or an RFR Borrowing, in each case, for the relevant Benchmark, shall be ineffective; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the applicable Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing denominated in Dollars so long as the Adjusted Daily Simple RFR for Dollar Borrowings is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple RFR for Dollar Borrowings also is the subject of Section 2.14(a)(i) or (ii) above, on such day, (B) for Term Benchmark Loans denominated in Canadian Dollars, on the last day of the Interest Period applicable to such Term Benchmark Loan (or the next succeeding Business Day if such day is not a Business Day) such Term Benchmark Loan shall be converted by the Administrative Agent to, and shall constitute, a Loan that bears interest at the Canadian Prime Rate plus the Applicable Spread applicable to ABR Loans and (C) for Loans denominated in an Foreign Currency other than Canadian Dollars, (1) any Term Benchmark 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) bear interest at the Central Bank Rate for the applicable Foreign Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Foreign Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in such Foreign Currency shall, at the Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in such Foreign Currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable Foreign Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Foreign Currency cannot be determined, any outstanding affected RFR Loans denominated in any Foreign Currency, at the applicable Borrower’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Amount of such Foreign Currency) immediately or (B) be prepaid in full immediately.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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” with respect to 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 (2) of the definition of “Benchmark Replacement” with respect to any Agreed Currency 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. (p.m., New York City time) , on the fifth (5th) Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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, the EURIBO Rate or the CDOR Rate) and either (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the applicable Borrower may revoke any request for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, either (x) the applicable Borrower will be deemed to have converted any request for a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or conversion to (A) an RFR Borrowing denominated in Dollars so long as the Adjusted Daily Simple RFR for Dollar Borrowings is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple RFR for Dollar Borrowings is the subject of a Benchmark Transition Event or (y) any Term Benchmark Borrowing or RFR Borrowing denominated in a Foreign Currency shall be 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 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 Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement for such Agreed Currency is implemented pursuant to this Section 2.14, (A) for Loans denominated in Dollars any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing denominated in Dollars so long as the Adjusted Daily Simple RFR for Dollar Borrowings is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple RFR for Dollar Borrowings is the subject of a Benchmark Transition Event, on such day, (B) for Loans denominated in Canadian Dollars, on the last day of the Interest Period applicable to such Term Benchmark Loan (or the next succeeding Business Day if such day is not a Business Day) such Term Benchmark Loan shall be converted by the Administrative Agent to, and shall constitute, a Loan that bears interest at the Canadian Prime Rate plus the Applicable Spread applicable to ABR Loans and (C) for Loans denominated in a Foreign Currency other than Canadian Dollars, (1) any Term Benchmark 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) bear interest at the Central Bank Rate for the applicable Foreign Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Foreign Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Foreign Currency shall, at the applicable Borrower’s election prior to such day: (A) be prepaid by such Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Foreign Currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable Foreign Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Foreign Currency cannot be determined, any outstanding affected RFR Loans denominated in any Foreign Currency, at the applicable Borrower’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Amount of such Foreign Currency) immediately or (B) be prepaid in full immediately.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.115.07, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Majority Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in the applicable RFR Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Borrowing Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be Borrowing Request for (1) an Interest Election Request RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 5.07(a)(i) or a Borrowing Request, as applicable, for (ii) above or (2) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 5.07(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a5.07(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (xI) 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 (yII) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 5.07(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 5.07(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 5.07), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (xi) if a Benchmark Replacement is determined in accordance with clause (1a) 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 (yii) if a Benchmark Replacement is determined in accordance with clause (2b) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.Majority
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (bSection 2.11(b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because or the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining, if applicable pursuant to Section 2.11(b), the Adjusted Daily Simple SOFR or the Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, that, if applicable pursuant to Section 2.11(b), the Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in the applicable Borrowing; then the Administrative Agent shall give notice thereof to the Borrower Company and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, and until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) exist with respect to the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03relevant Benchmark, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark an affected Term SOFR Borrowing shall be ineffectiveor, if applicable pursuant to Section 2.11(b), Daily Simple SOFR Borrowing and (ii) if any Borrowing Request that requests a Eurodollar Borrowingan affected Term SOFR Borrowing or, suchTerm Benchmark if applicable pursuant to Section 2.11(b), Daily Simple SOFR Borrowing shall be made asinstead instead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark SOFR Loan, or, if applicable pursuant to Section 2.11(b), Daily Simple SOFR Loan is outstanding on the date of the BorrowerCompany’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate the relevant Benchmark applicable to such Term Benchmark SOFR Loan or Daily Simple SOFR Loan, then until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist and with respect to the relevant Benchmark, (yA) the Borrower delivers if such Loan is a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03Term SOFR Loan, any Term Benchmark such Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, Loan convert to an ABR Loan and (B) if such Loan is a Daily Simple SOFR Loan, such Loan shall on such day.
(b) Notwithstanding anything to the contrary herein, upon first Business Day following the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting date 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 in respect Company’s receipt of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 convert 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 AgreementABR Loan.
(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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Term Credit Agreement (Westinghouse Air Brake Technologies Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11 Section 2.11, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or 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 exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loanshall, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11 Section 2.11.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark 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 Adjusted Term SOFR Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.11 Section 2.11, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
Appears in 1 contract
Samples: Senior Secured Term Loan Facility (Moove Lubricants Holdings)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including including, without limitation, because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such time; oradequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple RFR or Daily Simple SOFR for an RFR Revolving Loan;
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that the Adjusted Term SOFR Rate for such the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Revolving Loans (or its Loan) included in such Borrowing for such Interest Period, or (B) at any time, the applicable Adjusted Daily Simple RFR for an RFR Revolving Loan will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Revolving Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail through any Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and with respect to the relevant Benchmark, (y1) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanRevolving 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, (x) an RFR Borrowing so long as the Adjusted Daily Simple RFR is not also the subject of Section 2.11(a)(i) or (ii) above or (y) an ABR Revolving Loan if the Adjusted Daily Simple RFR also is the subject of Section 2.11(a)(i) or (ii) above, on such day, and (2) any RFR Revolving Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Revolving Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In Notwithstanding anything to the contrary herein or in any other Loan Document, in connection with the implementation of a any Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, Agent (in consultation with the Borrower, ) will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action by or consent of any other party to this AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.111 or in any related definitions.
(e) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-then- current Benchmark is a term rate (including the Term SOFR Rate) and either (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR Borrowing and any 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 (i) with respect to any Term Benchmark Borrowing, an RFR Borrowing so long as the Adjusted Daily Simple RFR is not the subject of a Benchmark Transition Event or (ii) an ABR Borrowing if the Adjusted Daily Simple RFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Revolving Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.11, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Revolving 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, (x) an RFR Borrowing so long as the Adjusted Daily Simple RFR is not the subject of a Benchmark Transition Event or (y) an ABR Revolving Loan if the Adjusted Daily Simple RFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Revolving Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Revolving Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If Subject to Section 2.23, notwithstanding any other provision of this Agreement, if prior to the commencement of any Interest Period for a Eurodollar SOFR Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) 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 Eurodollar RateAdjusted Term SOFR Rate (including because for an Interest Period with the Term SOFR Reference Rate is not available or published on a current basis), for duration of such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(iib) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 an Interest Period with the duration of such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, followed promptly by written confirmation thereof delivered by telecopy (or if arrangements for doing so have been approved by the Administrative Agent, electronic mail communication) as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, then (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark SOFR Borrowing with an Interest Period having the duration of such Interest Period shall be ineffective and any such SOFR Borrowing shall be ineffective, repaid on the last day of the then current Interest Period applicable thereto and (ii) if any Borrowing Request that requests a Eurodollar BorrowingSOFR Borrowing with an Interest Period having the duration of such Interest Period, suchTerm Benchmark such Borrowing shall be made asinstead be deemed to be as a SOFR Borrowing having an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance Period with the terms of Section 2.05 or a new Borrowing Request shortest available duration described in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 or, in the absence of any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if available duration, as a tenor that was removed pursuant Base Rate Borrowing without reference to clause (iiii) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify of the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenorBase Rate”.
Appears in 1 contract
Samples: Credit Agreement (Globant S.A.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Effective SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Effective SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.8 or a new Borrowing Request in accordance with the terms of Section 2.032.3, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as such Borrowing is a Revolving Borrowing and the Adjusted Daily Effective SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if such Borrowing is a Term Loan Borrowing or the Adjusted Daily Effective SOFR (if a Revolving Borrowing) also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.8 or a new Borrowing Request in accordance with the terms of Section 2.032.3, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as such Borrowing is a Revolving Borrowing and the Adjusted Daily Effective SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if such Borrowing is a Term Loan Borrowing or the Adjusted Daily Effective SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for (i) a Term Benchmark Borrowing, conversion to or continuation of Term Benchmark Loans to be made, converted or continued or (ii) a RFR Borrowing or conversion to RFR Loans, during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Borrowing or RFR Borrowing, as applicable, into a request for a Borrowing of or conversion to (A) solely with respect to any such request for a Term Benchmark Borrowing, an RFR Borrowing so long as such Borrowing is a Revolving Borrowing and the Adjusted Daily Effective SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if such Borrowing is a Term Loan Borrowing or the Adjusted Daily Effective SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as such Borrowing is a Revolving Borrowing and the Adjusted Daily Effective SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if such Borrowing is a Term Loan Borrowing or the Adjusted Daily Effective SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.13, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.7 or a new Borrowing Request in accordance with the terms of Section 2.032.5, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark 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 2.05 2.7 or a new Borrowing Request in accordance with the terms of Section 2.032.5, any Term Benchmark Loan shall shall, on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.13, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.13.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. 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 Benchmark 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 Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.13, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Pinterest, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11Section, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including including, without limitation, because the Term SOFR Reference Rate is not available or published on a current basis), for the applicable Currency and such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.7 or a new Borrowing Request in accordance with the terms of Section 2.032.3, (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, ineffective and (iiB) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx the other Types Type of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark 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 2.05 2.7 or a new Borrowing Request in accordance with the terms of Section 2.032.3, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, constitute an ABR Loan on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.of
Appears in 1 contract
Samples: Credit Agreement (Apache Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a1) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.112.14, ifif prior to the commencement of any Interest Period for a EurocurrencyTerm Benchmark Borrowing of any Class:
(i) 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 Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBOTerm SOFR Rate, as applicable (including because the Term SOFR Reference 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 with respect to such Benchmark shall have occurred at such time; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate or the LIBOTerm SOFR Rate as applicable, for the applicable Agreed 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 Agreed Currency and such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm EurocurrencyTerm Benchmark Borrowing shall be ineffective, and (iiB) if any Borrowing Request that requests a Eurodollar BorrowingEurocurrencyTerm Benchmark Revolving Borrowing in dollars, suchTerm Benchmark such Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR BorrowingBorrowing and (C) if any Borrowing Request requests a EurocurrencyTerm Benchmark Borrowing in a Permitted Foreign Currency, then such request shall be ineffective; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsBorrowing, then xxxxxx the other Types of Borrowings shall be permitted. Furthermore, if any Term EurocurrencyTerm Benchmark 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 2.11(a2.14(a) with respect to a Relevant the Adjusted LIBOTerm SOFR Rate applicable to or the LIBOTerm SOFR Rate (as applicable) for such Term EurocurrencyTerm Benchmark LoanLoan then (i) if such EurocurrencyTerm Benchmark Loan is denominated in dollars, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 EurocurrencyTerm Benchmark 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 EurocurrencyTerm Benchmark 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 aforementioned notice no longer exist, such ABR Loan denominated in dollars shall then be converted by the Administrative Agent to, and shall constitute, a EurocurrencyTerm Benchmark Loan denominated in such original Agreed Currency (in an amount equal to the Permitted Foreign Currency Equivalent of such Agreed Currency) on the day of such notice being given to the Borrower by the Administrative Agent.
(b2) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (232) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 . If 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinis based upon Daily Simple SOFR, the Administrative Agent, in consultation with 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 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 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, all interest payments 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) any tenor for such Benchmark is not displayed payable 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenormonthly basis.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.13, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy telecopy, facsimile or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.7 or a new Borrowing Request in accordance with the terms of Section 2.032.5, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsBorrowing, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.7 or a new Borrowing Request in accordance with the terms of Section 2.032.5, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.13), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 US-DOCS\155537880.27 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with Agent (acting at the Borrower, direction of the Required Lenders) will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 Agent, the Borrower or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.112.13, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.13.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a US-DOCS\155537880.27 Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.13, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute 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 the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingLoan, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or DB3/ 204481699.8 (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the Adjusted Daily Effective SOFR Rate; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingLoan, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, the Adjusted Daily Effective SOFR Rate will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan); then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Borrowing Loan to, or continuation of any Borrowing Loan as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, Loan and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing Loan shall be made asinstead instead be deemed to be an Interest Election Request or Borrowing Request, as applicable, for (x) an RFR Loan so long as the Adjusted Daily Effective SOFR Rate is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Effective SOFR Rate also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Loan shall instead be deemed to be a Borrowing Request, as applicable, for an ABR BorrowingLoan; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsLoans, then xxxxxx all other Types of Borrowings Loan shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement an RFR Loan so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Adjusted Daily Effective SOFR Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 also the Administrative Agent in its reasonable discretion or (ii) the regulatory supervisor for the administrator subject 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark ReplacementSection 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Effective SOFR Rate also is notthe subject of Section 2.14(a)(i) or (ii) above, or is no longeron such day, subject to an announcement that it is or will no longer and (2) any RFR Loan shall on and from such day be representative for a Benchmark (including a Benchmark Replacement), then converted by the Administrative Agent to, and shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenorconstitute an ABR Loan.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Veris Residential, L.P.)
Alternate Rate of Interest. (a) If Subject to Section 2.11(b), if prior to the commencement of any Interest Period for a Eurodollar Term SOFR Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate for such Interest Period (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making making, continuing, converting or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice (which may be telephonic) thereof to the Borrower Company and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist and (y) the Borrower Company delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Term SOFR Borrowing shall be ineffectiveineffective and such Borrowing shall continue as, or at [[6069954]] the end of the applicable Interest Period convert to, an ABR Borrowing and (iiB) if any Borrowing Request that requests a Eurodollar Term SOFR Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(bi) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if a Benchmark Transition Event or an Early Opt-in Election, as applicablehas occurred, the Administrative Agent and the Borrower Company may amend this Agreement to replace the Eurodollar Rate then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmarkp.m., 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any proposed amendment to all Lenders and the Borrower,Company, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any Daily Simple 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 Eurodollar Rate the then-current Benchmark with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(cii) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement (including implementation of Term SOFR), the Administrative Agent, in consultation with the BorrowerCompany, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(diii) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (iA) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableand its related Benchmark Replacement Date and Benchmark Transition Start Date, (iiB) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (ivC) the removal or reinstatement of any tenor of a Benchmark pursuant to clause Section 2.11(b)(iv), (fD) below the effectiveness of any Benchmark Replacement Conforming Changes and (vE) 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(eiv) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFR RateSOFR) and either (i1) 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 (ii2) 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 (iiB) if a tenor that was removed pursuant to clause (iA) above either (i1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii2) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor. [[6069954]]
(v) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, (A) any request pursuant to Section 2.05 for a conversion of any Borrowing to, or continuation of any Borrowing as, a Term SOFR Borrowing shall be ineffective, and, on the last day of the then current Interest Period applicable thereto, such Borrowing shall be continued as an ABR Borrowing, and (B) any request pursuant to Section 2.03 for a Term SOFR Borrowing shall be deemed to be a request for an ABR Borrowing.
(vi) Any determination, decision or election that may be made by the Administrative Agent or the 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.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.112.18, ifif prior to the commencement of any Interest Period:
(i) 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 Eurodollar RateAdjusted Term SOFR LIBO Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with interest rate applicable to the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing Loans shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayAlternate Base Rate.
(b) Notwithstanding anything to the contrary hereinherein or in any other Basic Document (and any Hedge Agreement shall be deemed not to be a “Basic Document” for purposes of this Section 2.18), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Basic 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 Basic Document and (y) if a Benchmark Replacement LEGAL02/42658427v2 is determined in accordance with clause (23) 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders and the Borrower without any amendment to all Lenders and the Borrower,to, or further action or consent of any other party to, this Agreement or any other Basic Document so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Basic 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 Basic 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 Basic Document; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (c) shall not be effective unless 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 Administrative Agent has delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with and the Borrower a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..Term SOFR Notice.
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Basic Document.
(de) 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 andChanges, (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 2.112.18, 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 heretoto to this AgreementAgreement or any other Basic Document, except, in each case, as expressly required pursuant to this Section 2.112.18.
(ef) Notwithstanding anything Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Loan to the contrary herein, be made. During any Benchmark Unavailability Period or at any time (including in connection with the implementation of that a Benchmark Replacement), (i) if tenor for the then-current Benchmark is a term rate (including not an Available Tenor, the Term SOFR Rate) and either (i) component of any Interest Rate based upon the then-current Benchmark or such tenor for such Benchmark is Benchmark, as applicable, will not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent be used in its reasonable discretion or (ii) the regulatory supervisor for the administrator any determination 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.Rate. LEGAL02/42658427v2
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.113.03, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time that no Benchmark Transition Event shall have occurred at such timeAdjusted Daily Simple SOFR is the then-applicable Benchmark, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time that Adjusted Daily Simple SOFR is the then-applicable Benchmark, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.04 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffectiveor an RFR Borrowing, as applicable, and (ii) if any Borrowing Request that requests a Eurodollar Term Benchmark Borrowing or an RFR Borrowing, suchTerm Benchmark Borrowing as applicable, shall be made asinstead instead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan, as applicable, is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a3.03(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.04 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan, and (2) any RFR Loan shall on and from such dayday be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Houston, Texas time) on the fifth (5th) Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.113.03, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.113.03.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. 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 Benchmark 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 Section 3.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, 2.13 if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingLoan, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingLoan, the Adjusted Term SOFR 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 Loan for such Interest PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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 Loan; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request interest election request in accordance with the terms of Section 2.05 2.9 or a new Borrowing Request borrowing request in accordance with the terms of Section 2.032.2, (1) any Interest Election Request interest election request that requests the conversion of any Borrowing Revolving Loan to, or continuation of any Borrowing Revolving Loan as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, Loan and (ii) if any Borrowing Request borrowing request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Loan Borrowing shall be made asinstead instead be deemed to be an Interest Election Request interest election request or a Borrowing Requestborrowing request, as applicable, for (x) an RFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR BorrowingLoan if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above and (2) any borrowing request that requests an RFR Loan shall instead be deemed to be a borrowing request for an ABR Loan; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsLoan, then xxxxxx all other Types of Borrowings Loans shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 interest election request in accordance with the terms of Section 2.05 2.9 or a new Borrowing Request borrowing request in accordance with the terms of Section 2.032.2, any (1)any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i1) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii2) the implementation of any Benchmark Replacement, (iii3) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) below and (v5) 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 2.112.13, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.13.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for borrowing a Term Benchmark Loan, any such conversion to or continuation of Term Benchmark Loans to be made, converted or continued during such Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Loan into a request for a borrowing of or conversion to (A) an RFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.13, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(ai) Subject to clauses (b), (c), (d), (eSection 3.02(f)(ii) and (f) of this Section 2.11below, if:
(i1) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate or Term SOFR (including because the Term SOFR Reference 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
(ii2) the Administrative Agent is advised by the Required Majority Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.04 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark SOFR Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark SOFR Borrowing shall be made asinstead instead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a3.02(f)(i) with respect to a Relevant the Term SOFR Rate applicable to such Term Benchmark 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 2.05 2.04 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark SOFR Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 on such dayLoan.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Credit Agreement (Evolve Transition Infrastructure LP)
Alternate Rate of Interest. (ai) If Subject to clauses (ii) through (vii) of this Section 2.17(a), if prior to the commencement of any Interest Period for a Eurodollar BorrowingRate Loan:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(iA) 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, Loan that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBO Rate, as applicable (including because the Term LIBO ScreenTerm SOFR Reference 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
(iiB) the Administrative Agent is advised by the Required Requisite Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowingborrowing, the Adjusted Term LIBOTerm SOFR Rate or the LIBO 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 borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 Funding Notice or a new Borrowing Request in accordance with the terms of Section 2.03Conversion/Continuation Notice, as applicable, any Interest Election Request Conversion/Continuation Notice that requests the conversion of any Borrowing Loan to, or continuation of any Borrowing Loan as, a EurodollarTerm Benchmark Borrowing Eurodollar Rate Loan shall be ineffective, and (iiB) if any Funding Notice requests a Eurodollar Rate Loan, such borrowing shall be made as an ABR Borrowing Request and (C) Term Benchmark Loan and any Funding Notice that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing Loan shall be made asinstead instead be deemed to be a request for (1) an Interest Election Request RFR Loan so long as the Adjusted Daily Simple SOFR is not also subject to the same circumstances as the Adjusted Term SOFR Rate under Section 2.17(a)(i)(A) or a Borrowing Request, as applicable, for (a)(i)(B) above or (2) an ABR BorrowingLoan if the Adjusted Daily Simple SOFR also is subject to the same circumstances as the Adjusted Term SOFR Rate under Section 2.17(a)(i)(A) or (a)(i)(B) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsLoan, then xxxxxx the other Types Type of Borrowings Loans shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.17(a) with respect to a the Relevant Rate applicable to such Term Benchmark 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 2.05 Funding Notice or a new Borrowing Request in accordance with the terms of Section 2.03Conversion/Continuation Notice, as applicable, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Loan so long as the Adjusted Daily Simple SOFR is not also subject to the same circumstances as the Adjusted Term SOFR Rate under Section 2.17(a)(i)(A) or (a)(i)(B) above, on such day, or (y) an ABR Loan on such day.if the Adjusted Daily Simple SOFR also is subject to the same
(bii) Notwithstanding anything to the contrary hereinherein or in any other Credit Document, upon the occurrence ofif if a Benchmark Transition Event or Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Dollars 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 (232) of the definition of “Benchmark Replacement” with respect to the Agreed Currency 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required RequiredRequisite Lenders.
(i) Notwithstanding anything to the contrary herein or in any other Credit Document and subject to the proviso below in this paragraph, with respect to a Loan denominated in 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 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, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (iii) shall not be effective unless 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 Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement shall not be required to deliver a Term SOFR Notice after the occurrence of Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Term SOFR Transition Start Date..Event and may do so in its sole discretion.
(ciii) In connection with the implementation of a Benchmark ReplacementNotwithstanding Replacement[Reserved].
(iv) Notwithstanding anything to the contrary hereinherein or in any other Credit Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Credit Document.
(dv) The Administrative Agent will promptly notify the Borrower and the Lenders of (iA) any occurrence of a Benchmark Transition Event or Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, (iiB) the implementation of any Benchmark Replacement, (iiiC) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (ivD) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fvi) below and (vE) 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.any
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Hydrofarm Holdings Group, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.113.10, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingLoan, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis) or the Adjusted EURIBO Rate or the EURIBO Rate (including because the Screen Rate is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the Daily Simple XXXXX Xxxx, XXXXX or the Adjusted Daily Simple SOFR for the applicable Agreed Currency; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR or the Adjusted EURIBO Rate or the EURIBO Rate for the applicable Agreed 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 Agreed Currency and such Interest PeriodPeriod 62 or (B) at any time, the applicable Daily Simple XXXXX Xxxx, XXXXX or Adjusted Daily Simple SOFR for the applicable Agreed 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 the applicable Agreed Currency; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request Notice of Continuation/Conversion in accordance with the terms of Section 2.05 2.4 or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.1(b), (A) for Loans denominated in Dollars, (1) any Interest Election Request Notice of Continuation/Conversion that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, ineffective and (ii) if any Notice of Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request a Notice of Continuation/Conversion or a Borrowing RequestNotice of Borrowing, as applicable, for (x) an ABR BorrowingRFR Loan denominated in Dollars so long as the Adjusted Daily Simple SOFR is not also the subject of Section 3.10(a)(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR also is the subject of Section 3.10(a)(i) or (ii) above and (2) any Notice of Borrowing that requests an RFR Loan shall instead be deemed to be a Notice of Borrowing for a Base Rate Loan and (B) for Loans denominated in an Alternative Currency, any Notice of Continuation/Conversion that requests a Term Benchmark Loan or an RFR Loan for the relevant rate above in an Alternative Currency, then such request shall be ineffective; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of BorrowingsBorrowing, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR 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 2.11(a) 3.10 with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 Notice of Continuation/Conversion in accordance with the terms of Section 2.05 2.4 or a new Notice of Borrowing Request in accordance with the terms of Section 2.032.1(b), (A) for Loans denominated in Dollars, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an ABR RFR Loan denominated in Dollars so long as the Adjusted Daily Simple SOFR is not also the subject of Section 3.10(a)(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR also is the subject of Section 3.10(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan and (B) for Loans denominated in an Alternative Currency, (1) any Term Benchmark 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) bear interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable Percentage; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Agreed Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Agreed Currency other than Dollars shall, at the Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Agreed Currency other than Dollars shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable Percentage; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, any 63 outstanding affected RFR Loans denominated in any Alternative Currency, at the Borrower’s election, shall either (A) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or (B) be prepaid in full immediately.
(ba) Notwithstanding anything to the contrary hereinherein or in any other Credit Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 Credit Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” with respect to any Agreed Currency 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,to, or further action or consent of any other party to, this Credit Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(cb) In connection with the implementation of a Benchmark ReplacementNotwithstanding Replacement, notwithstanding anything to the contrary hereinherein or in any other Credit Document, the Administrative Agent, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementCredit Agreement or any other Credit Document (other than the Administrative Agent and the Borrower).
(dc) 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 applicableand its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 reasonable 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 2.113.10, 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 heretoto to this AgreementCredit Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.113.10.
(d) To the extent administratively and operationally feasible, the Administrative Agent shall use commercially reasonable efforts to cooperate with the Borrower’s requests to ensure that any Benchmark Replacement and any Benchmark Replacement Conforming Changes meet the standards set forth in Treasury Regulation Section 1.1001-6 (or any successor or final version of such regulation or other official guidance issued by the U.S. Internal Revenue Service) so as not to be treated as a “modification” (and therefore an exchange) of this Credit Agreement for purposes of Treasury Regulation Section 1.1001-3, it being understood that for these purposes, the substantially equivalent fair market value requirement of Treasury Regulation Section 1.1001-6(b)(2) shall be deemed satisfied, and it being further understood that the Administrative Agent shall not be required to take any action under this provision that would cause it any commercially unreasonable burden, as determined in good faith by the Administrative Agent.
(e) Notwithstanding anything to the contrary hereinherein 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 or EURIBO Rate) and either (iA) 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 (iiB) the regulatory supervisor for the administrator of such Benchmark 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 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Loan or RFR Loan or any request for the conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, either (x) the Borrower will be deemed to have converted any request for (1) a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or conversion to (A) an RFR Loan denominated in Dollars so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) a Base Rate Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event or (y) any Term Benchmark Loan or RFR Loan denominated in an Alternative Currency shall be 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 Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement for such Agreed Currency is implemented pursuant to this Section 3.10, (A) if such Term Benchmark Loan is denominated in Dollars, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Loan denominated in Dollars so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan, and (B) for Loans denominated in an Alternative Currency (1) any Term Benchmark 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) bear interest at the Central Bank Rate for the applicable Alternative Currency plus the Applicable Percentage; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at the Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Agreed Currency other than Dollars shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable Alternative Currency plus the Applicable Percentage; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, any outstanding affected RFR Loans denominated in any Alternative Currency, at the Borrower’s election, shall either (A) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or (B) be prepaid in full immediately.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.113.6, ifif prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted EurodollarAdjusted Term SOFR Rate or the Eurodollar BaseTerm SOFR Rate, as applicable (including because the Term ScreenTerm SOFR Reference 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, or or (B) at any time, that
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , Rate or the Eurodollar Base (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate or the Term SOFR 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; , or (B) at any time, Adjusted Daily Simple SOFR 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, then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) and (y) the Borrower delivers a new Interest Election Request conversion or continuation request or borrowing request, as applicable, in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03this Agreement, any Interest Election Request that requests the conversion of request to convert any Borrowing to, or continuation of continue any Borrowing as, a Borrowing of EurodollarTerm Benchmark Borrowing Loans shall be ineffective, ineffective and (iiB) if any request for a Borrowing Request that requests a Eurodollar Borrowing, suchTerm of EurodollarTerm Benchmark Borrowing Loans shall be made asinstead as a Borrowing or ABR Loansinstead be deemed to be an Interest Election Request a conversion or a Borrowing Requestcontinuation request or borrowing request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 3.6(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 3.6(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx the other Types Type of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a3.6(a) with respect to a Relevant the Adjusted Term SOFR Rate applicable to such or the Term Benchmark LoanSOFR Rate, 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 conversion or continuation request or borrowing request, as applicable, in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03this Agreement, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 3.6(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 3.6(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 3.6), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (232) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document and subject to the proviso below in this paragraph, the Administrative Agent, in consultation with the Borrower, will have the right to make if a Term SOFR Transition Event and its related Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything Date have occurred prior to the contrary hereinReference 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 amendments implementing Loan Document in respect of such Benchmark Replacement Conforming Changes will become effective setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to to, this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) Agreement or any occurrence of a Benchmark Transition Event or an Early Opt-in Electionother Loan Document; provided that, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to this clause (fc) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may shall not be made by effective unless 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything has delivered to the contrary herein, at any time (including in connection with Lenders and the implementation of Borrower a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 Notice. For the Administrative Agent in its reasonable discretion or (ii) the regulatory supervisor for the administrator avoidance 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 representativedoubt, 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or not be required to deliver a Term SOFR Notice after such time to reinstate such previously removed tenora Term SOFR Transition Event and may do so in its sole discretion.
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Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (fe) of this Section 2.112.17, if:
if prior to the commencement of any Interest Period: (i) 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 Eurodollar RateAdjusted Term SOFR Rate LIBOR (including because the Term SOFR Reference LIBOR Screen Rate is not available or published on a current basis), for such Interest Period; provided provided, that no Benchmark Transition Event shall have occurred at such time; or
or (ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate LIBOR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate interest rate applicable to such Term Benchmark Loan, then until (xthe Loan(s) on each day will be the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayAlternate Base Rate.
(b) Notwithstanding anything to the contrary hereinherein or in any other Basic Document (and any Hedging Agreement shall be deemed not to be a 'Basic Document' for purposes of this Section 2.17) , upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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
(c) Notwithstanding anything to the contrary herein or in any other Basic 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 such the then- current Benchmark for all purposes hereunder or under any Basic Document in respect of such Benchmark setting and subsequent Benchmark settings settings, without any amendment to, or further action or consent of any other party to, this Agreement and (y) if a Benchmark Replacement is determined in accordance with or any other Basic Document; provided, that this clause (2c) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after shall not be effective unless the Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided delivered to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with Borrower a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..Term SOFR Notice.
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Basic Document.
(de) 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 andChanges, and (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 2.112.17, 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.without
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Daily Effective SOFR or the Adjusted Daily Effective SOFR Rate; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, the Adjusted Daily Effective SOFR Rate 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Revolving Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Effective SOFR Rate also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Effective SOFR Rate also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR 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 request for a (1) Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Effective SOFR Rate is the subject of a Benchmark Transition Event or (2) an RFR Borrowing into a request for an ABR Borrowing. 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 Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate. Furthermore, if any Term Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Effective SOFR Rate is the subject of a Benchmark Transition Event, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Samples: Revolving Credit Agreement (Brixmor Operating Partnership LP)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.13, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or, Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower Borrowers 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 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.13), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i1) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii2) the implementation of any Benchmark Replacement, (iii3) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) below and (v5) 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 Borrowers or any Lender (or group of Lenders) pursuant to this Section 2.112.13, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.13.
(e) Notwithstanding anything to the contrary hereinherein 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 (ia) 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 (iib) 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 (ia) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iib) 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 shall 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 for a Term Benchmark Borrowing or RFR 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.13, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (bSection 2.11(b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR (including because the Term SOFR Reference Rate is not available or published on a current basis), ) for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the Adjusted Daily Simple SOFR or the Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, that the Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in any Daily Simple SOFR Borrowing; then the Administrative Agent shall give notice (which may be telephonic) thereof to the Borrower Company and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower Company delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Term SOFR Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Term SOFR Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) a Daily Simple SOFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or 2.11(a)(ii) above or (y) an ABR Borrowing; provided that, Borrowing if the circumstances giving rise to such notice affect fewer than allonly one Types Adjusted Daily Simple SOFR also is the subject of Borrowings, then xxxxxx other Types of Borrowings shall be permittedSection 2.11(a)(i) or 2.11(a)(ii) above. Furthermore, if any Term Benchmark SOFR Loan is outstanding on the date of the BorrowerCompany’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a the Relevant Rate applicable to such Term Benchmark SOFR Loan, then until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower Company delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark SOFR Loan shall shall, on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent convert to, and shall constitute, (x) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.11(a)(i) or 2.11(a)(ii) above or (y) an ABR Loan on such dayif the Adjusted Daily Simple SOFR also is the subject of Section 2.11(a)(i) or 2.11(a)(ii) above.
(bi) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 the other Loan Documents 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 the other Loan Documents in respect of any Benchmark setting at or after 5:00 p.m. (p.m., New York City time) , on the fifth (5th) Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(cii) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(diii) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (iA) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (iiB) the implementation of any Benchmark Replacement, (iiiC) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (ivD) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fSection 2.11(b)(iv) below and (vE) 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 selectionaction, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(eiv) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (ix) if the then-current Benchmark is a term rate (including the Term SOFR RateSOFR) and either (iA) 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 (iiB) 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 (iiy) if a tenor that was removed pursuant to clause (ix) above either (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company may revoke any request for a 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 Company will be deemed to have converted any request for a Term SOFR Borrowing into a request for a borrowing of or conversion to (A) a Daily Simple SOFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. Furthermore, if any Term SOFR Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term SOFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.11, any Term SOFR Loan shall, on the last day of the Interest Period applicable to such Loan, convert to, and shall constitute, (x) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event.
Appears in 1 contract
Samples: Credit Agreement (Kla Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, the Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Samples: 364 Day Term Loan Credit Agreement (Take Two Interactive Software Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.113.03, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR, Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request Borrowing Notice in accordance with the terms of Section 2.05 or a new 2.02, (1) any Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing and any Borrowing Notice that requests a Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, Notice for (x) an RFR Borrowing so long as applicable, the Adjusted Daily Simple SOFR is not also the subject of Section 3.03(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 3.03(a)(i) or (ii) above and (2) any Borrowing Notice that requests an RFR Borrowing shall instead be deemed to be a Borrowing Notice for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a3.03(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 Borrowing Notice in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.02, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 3.03(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 3.03(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 3.03), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.113.03, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.113.03.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 3.03, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Cim Real Estate Finance Trust, Inc.)
Alternate Rate of Interest. (a) If In the event, and on each occasion, that (i) on the day two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) SOFR Borrowing the Applicable Administrative Agent determines (which determination shall be conclusive absent manifest error), prior is unable to the commencement of determine Adjusted Term SOFR for SOFR Loans comprising any Interest Period for a Term Benchmark requested Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate (including because the Term SOFR Reference 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
(ii) if the Applicable Required Lenders shall, by 11:00 a.m. (Standard Time) at least one (1) Business Day before the date of any requested Borrowing, notify the Applicable Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for SOFR Loans comprising such Interest Period Borrowing will not adequately and fairly reflect the cost to such Lenders (or Lender) any Lender of making or maintaining their Loans (or its SOFR Loan) included in such Borrowing for , during such Interest Period; , then the Applicable Administrative Agent shall, as soon as practicable thereafter, give written, fax or electronic communication (e-mail) (or telephone notice promptly confirmed by a written, fax or electronic communication (e-mail)) notice of such determination to each Applicable Borrower and each Applicable Lender. In the event of any such determination, until the Applicable Administrative Agent shall give notice thereof to have advised the Borrower Applicable Borrowers and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Applicable Lenders that the circumstances giving rise to such notice no longer exist, any request by such Borrower for a SOFR Borrowing (iother than a SOFR Borrowing under the Australian Revolving Credit Facility) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of pursuant to Section 2.05 2.03 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing 2.10 shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, request for an ABR Borrowing (or, in the case of a request by the Parent Borrower, a U.S. Base Rate Borrowing; provided that, if ). Each determination by the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings Applicable Administrative Agent hereunder shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayconclusive absent manifest error.
(b) Notwithstanding anything to the contrary hereinforegoing, upon if the occurrence ofif a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Applicable Administrative Agent (i) determines that the circumstances described in clause (a)(i) of this Section 2.08 have arisen and such circumstances are unlikely to be temporary, (ii) determines that the Borrower may amend circumstances described in clause (a)(i) of this Agreement to replace Section 2.08 have not arisen but the Eurodollar Rate with supervisor for the administrator of Term SOFR or a Benchmark Replacement. Any such amendment with respect to Governmental Authority having jurisdiction over the Applicable Administrative Agent has made a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to public statement identifying a specific date after which Term SOFR shall no longer be used for determining interest rates for loans, (iii) is advised by the Reference Time in respect Applicable Required Lenders of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined their determination in accordance with clause (1a)(ii) of this Section 2.08, or (iv) new syndicated loans have started to adopt a new benchmark interest rate, then the definition Applicable Administrative Agent and the Applicable Borrower shall endeavor to establish an alternate rate of “Benchmark Replacement” interest to Term SOFR 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 Benchmark Replacement Datetime, and shall enter into an amendment to this Agreement to reflect such Benchmark Replacement will replace alternate rate of interest and such Benchmark for all purposes hereunder in respect other related changes to this Agreement as may be applicable, provided that to the extent that the Applicable Administrative Agent determines that adoption of any portion of such Benchmark setting and subsequent Benchmark settings without any amendment tomarket convention is not administratively feasible or that no market convention for the administration of such alternate rate of interest exists, or further action or consent of any other party to, this Agreement 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 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 Applicable Administrative Agent has posted suchdate notice shall administer such alternate rate of such Benchmark Replacement is proposvided to interest in a manner acceptable by the Lenders without any amendment to all Lenders Applicable Administrative Agent and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinin Section 9.08, the Administrative Agent, in consultation with 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 amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Applicable 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 Applicable Lenders, a written notice from the Applicable Required Lenders stating that such Applicable Required Lenders object to such amendment. If a notice of an alternate rate of interest has been given and no such alternate rate of interest has been determined, and (x) the circumstances under clause (i) or (iii) above exist or (y) the specific date referred to in clause (ii) has occurred (as applicable), Alternate Base Rate shall apply without regard to clause (c) of the definition thereof. 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.
(dc) The Administrative Agent will promptly notify Subject to Section 2.27, if, on or prior to the Borrower and the Lenders first day of any Interest Period for any Term XXXXX Loan (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 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 Applicable Administrative Agent or, if applicable, any Lender determines (or group of Lenders) pursuant to this Section 2.11, including any which 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 shall be conclusive and binding absent manifest error and may error) that “Adjusted Term XXXXX” cannot be made in its or their sole discretion and without consent from any other party heretoto this Agreement, except, in each case, as expressly required determined pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary hereindefinition thereof, at any time (including in connection with the implementation of for reasons other than a Canadian Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 Transition Event or (ii) the regulatory supervisor Applicable Required Lenders determine that for any reason in connection with any request for a Term XXXXX Loan, or a conversion thereto or a continuation thereof that Term XXXXX for any requested Interest Period with respect to a proposed Term XXXXX Loan does not adequately and fairly reflect the administrator cost to such Lenders of making and maintaining such Loan, and the Applicable Required Lenders have provided notice of such Benchmark has provided determination to the Applicable Administrative Agent, the Applicable Administrative Agent will promptly so notify the Applicable Borrower and each Applicable Lender.
(d) Upon delivery of such notice by the Applicable Administrative Agent to the Applicable Borrower under Section 2.08(c), any obligation of the Applicable Lenders to make Term XXXXX Loans and any right of the Applicable Borrower to continue Term XXXXX Loans or to convert Canadian Prime Rate Loans to Term XXXXX Loans shall be suspended (to the extent of the affected Term XXXXX Loans or affected Interest Periods) until the Applicable Administrative Agent (with respect to Section 2.08(c)(ii), at the instruction of the Applicable Required Lenders) revokes such notice. Upon receipt of such notice by the Applicable Administrative Agent to the Applicable Borrower, the Applicable Borrower may revoke any pending request for a public statement borrowing of, conversion to or publication continuation of information announcing that any tenor for Term XXXXX Loans (to the extent of the affected Term XXXXX Loans or affected Interest Periods), and failing such Benchmark is or revocation, the Applicable Borrower will be no longer representativedeemed to have converted any such request into a request for a Borrowing of or conversion to Canadian Prime Rate Loans, then in the Administrative Agent may modify amount specified therein. Upon any such conversion, the definition of “Interest Period” for Applicable Borrower shall also pay accrued interest on the amount so converted, together with any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed additional amounts required pursuant to clause (i) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenorSection 2.15.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.113.4, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including including, because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or telecopy, electronic mail or other electronic system as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 3.2 or a new Borrowing Credit Request in accordance with the terms of Section 2.032.3, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Credit Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Credit Request, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a3.4(a) with respect to a Relevant Rate applicable to such Term Benchmark 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 2.05 3.2 or a new Borrowing Credit Request in accordance with the terms of Section 2.032.3, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 on such dayLoan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming 744315352 11074672 37 ALLETE CREDIT AGREEMENT Changes will become effective without any further action or consent of any other party to this AgreementAgreement or any other Loan Document.
(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 ElectionEvent, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.113.4, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.113.4.
(e) Notwithstanding anything to the contrary hereinherein 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall 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 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. 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 Benchmark 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 Section 3.4, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Allete Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.112.14, ifif at least two (2) Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the First Lien Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) at least two (2) Business Days prior to the commencement of any Interest Period for a Term Benchmark BorrowingEurodollar Borrowing that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Adjusted BA Rate or Adjusted EURIBOR, as applicable, for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate (including because the Term SOFR Reference 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 timeDaily Simple XXXXX; or
(ii) the First Lien Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Eurodollar Borrowing, the Adjusted Term SOFR LIBO Rate, the Adjusted BA Rate or Adjusted 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 case with respect to the Loans impacted by this clause (b) or clause (a) above, “Impacted Loans”) or (B) at any time, the Adjusted Daily Simple XXXXX 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 PeriodBorrowing; then the First Lien Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail facsimile as promptly as practicable thereafter and, until (x) the First Lien Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and in the event any Loans denominated in Dollars or Canadian Dollars are so affected, (yx) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing in Dollars or Canadian Dollars to, or continuation of any Borrowing in Dollars or Canadian Dollars as, a EurodollarTerm Benchmark Eurodollar Borrowing in Dollars or Canadian Dollars shall be ineffective and (y) if any Borrowing Request requests a Eurodollar Borrowing in Dollars or Canadian Dollars, then such Borrowing shall be ineffectivemade as an ABR Borrowing, and (ii) if in the event any Loans denominated in an Alternative Currency (other than Canadian Dollars or Sterling) are so affected, the relevant interest rate shall be determined in accordance with clause (ii) of the definition of “LIBO Rate” or “EURIBOR”, as applicable, and (iii) in the event any Loans denominated in Sterling are so affected, any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark XXXXX Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permittedineffective. Furthermore, if any Term Benchmark Loan XXXXX Xxxx is outstanding on the date of the Borrower’s receipt of the notice from the First Lien Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark LoanXXXXX Xxxx, then until (x) the First Lien Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time Adjusted Daily Simple XXXXX 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (bSection 2.11(b), (c), (d), (e) and (f) of this Section 2.11, if:
: (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingSOFR Borrowing or a CDOR Borrowing of any Class, 65 [[5866265v.11]] that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR, the Term SOFR or the CDO Rate (including because the Relevant Screen Rate is not available or published on a current basis) for the applicable Agreed Currency for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term SOFR Rate (including because Daily Simple RFR, XXXXX or €STR for the Term SOFR Reference Rate is not available or published on a current basisapplicable Agreed Currency or, if applicable pursuant to Section 2.11(b), for such Interest Periodthe Adjusted Daily Simple SOFR or the Daily Simple SOFR; provided that no Benchmark Transition Event shall have occurred at such time; or
or (ii) the Administrative Agent is advised by a Majority in Interest of the Required Lenders that the Eurodollar , of any Class (A) prior to the commencement of any Interest Period for a Term Benchmark BorrowingSOFR Borrowing or a CDOR Borrowing of such Class, that the Adjusted Term SOFR Rate or the CDO Rate, as the case may be, 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 PeriodPeriod or (B) at any time, that the Daily Simple RFR or, if applicable pursuant to Section 2.11(b), the Adjusted Daily Simple SOFR for the applicable Agreed Currency will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in the applicable Borrowing; then the Administrative Agent shall give notice thereof to the Borrower Company and the Lender or Lenders by telephone or, telecopy or electronic mail of such Class as promptly as practicable thereafter and, and until (x) the Administrative Agent notifies the Borrower Company and the Lenders of such Class that the circumstances giving rise to such notice no longer existexist with respect to the relevant Benchmark, (iA) and (y) in the Borrower delivers a new Interest Election Request case of Loans denominated in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03US Dollars, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark an affected Term SOFR Borrowing shall be ineffectiveor, if applicable pursuant to Section 2.11(b), Daily Simple SOFR Borrowing and (ii) if any Borrowing Request that requests a Eurodollar Borrowingan affected Term SOFR Borrowing or, suchTerm Benchmark if applicable pursuant to Section 2.11(b), Daily Simple SOFR Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing and (B) in the case of Loans denominated in any Alternative Currency, any Interest Election Request that requests the continuation of any Borrowing as an affected CDOR Borrowing and any Borrowing Request that requests an affected CDOR Borrowing or RFR Borrowing; provided that, if in each case, for the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings relevant Benchmark shall be permittedineffective. Furthermore, if any Term Benchmark SOFR Loan, CDOR Loan, RFR Loan or, if applicable pursuant to Section 2.11(b), Daily Simple SOFR Loan is outstanding on the date of the BorrowerCompany’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate the relevant Benchmark applicable to such Term Benchmark SOFR Loan, CDOR Loan, RFR Loan or Daily Simple SOFR Loan, then until (x) the Administrative Agent notifies the Borrower Company and the Lenders of the applicable Class that the circumstances giving rise to such notice no longer exist and with respect to the relevant Benchmark, (yA) the Borrower delivers if such Loan is a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03Term SOFR Loan, any Term Benchmark such Loan shall on the last day of the Interest Period applicable to such Loan convert to an ABR Loan, (B) if such Loan is a CDOR Loan, such Loan shall be converted prepaid (with the use of proceeds of other concurrently borrowed Revolving Loans or otherwise) in full by the Administrative Agent toapplicable Borrower on the last day of the Interest Period applicable thereto, (C) if such Loan is an RFR Loan, such Loan shall be prepaid (with the use of proceeds of other concurrently borrowed Revolving Loans or otherwise) in full by the applicable Borrower on the first Business Day following the date of the Company’s receipt of such 66 [[5866265v.11]] notice and (D) if such Loan is a Daily Simple SOFR Loan, such Loan shall constitute, on the first Business Day following the date of the Company’s receipt of such notice convert to an ABR Loan on such dayLoan.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Westinghouse Air Brake Technologies Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) ), and (f) and (g) of this Section 2.112.14, if:
(i) 1. the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term EurodollarTerm Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBOTerm SOFR Rate (including because the Term LIBO ScreenTerm SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) 2. the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term EurodollarTerm Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate or the LIBOTerm SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Eurodollar Borrowing shall be ineffective, ineffective and any such Eurodollar Borrowing shall be repaid or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto and (iiB) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing; provided Term Benchmark Borrowing and any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (1) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (2) an ABR Borrowing; provided that, Borrowing if Adjusted Daily Simple SOFR also is the circumstances giving rise to such notice affect fewer than allonly one Types subject of Borrowings, then xxxxxx other Types of Borrowings shall be permittedSection 2.14(a)(i) or (ii) above. Furthermore, if any Term Benchmark Term Loan or RFR Term Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Term Loan or RFR Term Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, ,
(1) any Term Benchmark Term Loan shall shall, on the last day of the Interest Period applicable to such Loanterm 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, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Term Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Term Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayTerm Loan.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: 364 Day Term Loan Credit Agreement (Fortune Brands Home & Security, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Applicable Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error), ) that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining asserting the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Adjusted Term CORRA Rate (including because the Term SOFR Reference Relevant Rate is not available or published on a current basis)) or (B) at any time, adequate and reasonable means do not exist for ascertaining the Adjusted Daily Simple SOFR or the Adjusted Daily Simple CORRA, as applicable, for the applicable Agreed Currency and such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Applicable Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate or the Adjusted Term CORRA Rate, as applicable, for the applicable Agreed 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 Agreed Currency and such Interest Period, or (B) at any time, Adjusted Daily Simple SOFR or Adjusted Daily Simple CORRA, as applicable, will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in the Borrowing; then the Applicable Administrative Agent shall give notice thereof to the Borrower Representative and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Applicable Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, (1) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Revolving Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, applicable for an ABR Borrowing and (B) if any Borrowing Request requests a Term Benchmark Borrowing denominated in Canadian Dollars, then such request shall be made as a Canadian Prime Rate Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx the other Types Type of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the BorrowerBorrower Representative’s receipt of the notice from the Applicable Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such the Term Benchmark Loan, as applicable, then until (x) the Applicable 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 (B) for Loans denominated in Canadian 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 Multicurrency Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan denominated in Canadian Dollars on such day.
(b) Notwithstanding anything to the contrary hereinherein 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), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Applicable Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(ci) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary herein, herein or in any other Loan Document the Applicable Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document in connection with the implementation of a Benchmark Replacement, the Applicable 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 and (ii) 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 Canadian dollars, if a Term CORRA Reelection 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)(ii) shall not be effective unless the Multicurrency Administrative Agent has delivered to the Lenders and the Borrower a Term CORRA Notice. For the avoidance of doubt, the Multicurrency Administrative Agent shall not be required to deliver a Term CORRA Notice after the occurrence of a Term CORRA Reelection Event and may do so in its sole discretion.
(d) The Applicable Administrative Agent will promptly notify the Borrower Representative and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 Applicable Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14 or any related definitions.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 Applicable Administrative Agent in its reasonable discretion or (iiB) 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 Applicable 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 Applicable Administrative Agent shall 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 Representative may revoke any request for (i) 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, either (x) the Borrower Representative will be deemed to have converted any request for a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or conversion to an ABR Borrowing or (ii) 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, in each case, failing that, either (x) the Borrower Representative will be deemed to have converted any request for a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or conversion to ABR Loans or (y) any Term Benchmark Borrowing denominated in Canadian Dollars into a request for a Borrowing of or conversion to Canadian Prime Rate 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 or 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 ABR or Canadian Prime Rate, as applicable. Furthermore, (i) if any Term Benchmark Loan denominated in Dollars is outstanding on the date of the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, 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 any Term Benchmark Loan denominated in Canadian Dollars is outstanding on the date of the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate, 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 Multicurrency Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan denominated in Canadian Dollars on such day.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) 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 Eurodollar RateAdjusted Term SOFR ascertaining, (including, without limitation, by means of an Interpolated Rate (including or because the Term SOFR Reference LIBO Screen Rate is not available or published on a current basis)) the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar Adjusted LIBO Rate or the LIBO Rate, prior to as applicable, for the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for such applicable 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail communication as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Eurodollar Borrowing shall be ineffectiveineffective and any such Eurodollar Borrowing shall be repaid or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything 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 contrary hereincircumstances 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), upon (x) the occurrence ofif US-DOCS\103717350.16 administrator of the LIBO Screen Rate has made a Benchmark Transition Event public statement identifying a specific date after which the LIBO Screen Rate will permanently or an Early Opt-in Electionindefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), as applicable(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 may amend 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 replace reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the Eurodollar Rate with avoidance of doubt, such related changes shall not include a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting reduction 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement from Lenders comprising the Required LendersApplicable Rate); provided that, with respect to any proposed amendment containing any SOFR-Based Rateif such alternate rate of interest as so determined would be less than zero, the Lenders such rate shall be entitled deemed to object only to be zero for the Benchmark Replacement Adjustment contained thereinpurposes of this Agreement. 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinin Section 9.02, the Administrative Agent, in consultation with 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 amendment shall become effective without any further action or consent of any other party to this AgreementAgreement 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)(w), clause (ii)(x) or clause (ii)(y) of the first sentence of this 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 Eurodollar Borrowing, shall be ineffective and any such Eurodollar Borrowing shall be repaid or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto, and (y) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
(dc) The If any Change in Law shall make it unlawful or impossible for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the Administrative Agent, the Administrative Agent will shall promptly notify give notice thereof to the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Electionother Lenders, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (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 whereupon until such Lender notifies the Administrative Agent orand the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make Eurodollar Loans, or to continue or convert outstanding Loans as or into Eurodollar, shall be suspended. In the case of the making of a Eurodollar Borrowing, such Lender’s Loan shall be made as an ABR Borrowing as part of the same Revolving Borrowing for the same Interest Period and, if applicablethe affected Eurodollar Loan is then outstanding, any Lender (or group of Lenders) pursuant such Loan shall be converted 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, 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 ABR Loan either (i) any tenor for on the last day of the then current Interest Period applicable to such Benchmark is not displayed on a screen or other information service that publishes Eurodollar Loan if such rate from time Lender may lawfully continue to time as selected by the Administrative Agent in its reasonable discretion maintain such Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding the regulatory supervisor for foregoing, the administrator of affected Lender shall, prior to giving 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 notice to the Administrative Agent may modify Agent, designate a different lending office if such designation would avoid the definition need US-DOCS\103717350.16 for giving such notice and if such designation would not otherwise be disadvantageous to such Lender in the good faith exercise 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenorits discretion.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(ai) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14Section 2.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, if applicable, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower Representative and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail through Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower Representative delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffectiveBorrowing, and (ii) if any Borrowing Request that requests a Eurodollar Term Benchmark Revolving Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request for an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the BorrowerBorrower Representative’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a)Section 2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower Representative delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (B) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and, upon for the occurrence ofif avoidance of doubt, no Swap Agreement shall be deemed a “Loan Document” for purposes of this Section 2.14Section 2.14), if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower Representative and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Representative may revoke any request for a Term Benchmark Borrowing or RFR 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 Borrowers will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR Loan is outstanding on the date of the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.13, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Majority Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Revolving Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing and (3) any request by the Borrower for a Term Benchmark Competitive Borrowing shall be ineffective; provided thatthat (A) if the circumstances giving rise to such notice do not affect all the Lenders, then requests by the Borrower for Term Benchmark Competitive Borrowings may be made to Lenders that are not affected thereby and (B) if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(aSection 2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, on such day, (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan and (3) any request by the Borrower for a Term Benchmark Competitive Loan shall be ineffective.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Majority 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.13, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.13.
(e) Notwithstanding anything to the contrary hereinherein 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 (ia) 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 (iib) the regulatory supervisor for the administrator of such Benchmark 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 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 (ia) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iib) 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 shall 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 for a Term Benchmark Borrowing or RFR 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing shall instead be deemed to be an Interest Election Request, as applicable, for (1) an RFR Borrowing so long as (A) adequate and reasonable means (as determined by the Administrative Agent) exist for ascertaining the Adjusted Daily Simple SOFR and (B) Adjusted Daily Simple SOFR will (as determined by the Administrative Agent) adequately and fairly reflect the cost to the Lenders of making or maintaining their Loans included in such Borrowing or (2) an ABR Borrowing if clauses (1)(A) and (1)(B) above are satisfied. Furthermore, if any Term Benchmark 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 a Relevant Rate applicable to such Term Benchmark 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 Borrowing Interest Election Request in accordance with the terms of Section 2.032.08, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as clauses (1)(A) and (1)(B) of the immediately preceding sentence are met or (y) an ABR Loan on such dayif clauses (1)(A) and (1)(B) of the immediately preceding sentence are not satisfied.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i1) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii2) the implementation of any Benchmark Replacement, (iii3) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv4) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) below and (v5) 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (i1) 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 (ii2) 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 (i1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii2) 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 shall 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 for a Term Benchmark Borrowing or 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark 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 Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.08, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy facsimile or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.10 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.08(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.08(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.08(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.10 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.08(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.08(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (including any related adjustments) 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. (p.m., New York City time) , on the fifth (5th) Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 . Notwithstanding anything to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect contrary herein or in any other Loan Document, and to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to extent administratively and operationally feasible, the Administrative Agent written notice shall use commercially reasonable efforts to ensure that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with a any Benchmark Replacement will occur prior could not reasonably be determined to be a “significant modification” (and therefore a deemed exchange) of this Agreement for purposes of Section 1.1001-3 of the applicable Benchmark Transition Start Date..United States Treasury Regulations, if the Borrower determines that any such deemed exchange would cause the Borrower, or its direct or indirect beneficial owners, any material adverse tax consequences; provided that the Administrative Agent shall not be required to take any action under this provision that would cause the Administrative Agent or the Lenders any commercially unreasonable burden as reasonably determined in good faith by the Administrative Agent.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.08, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.08.
(e) Notwithstanding anything to the contrary hereinherein 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 (ia) 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 (iib) 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 (ia) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iib) 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 shall 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 for a 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 request for a Term Benchmark Borrowing into a request for a borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.08, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Samples: Abl Credit Agreement (Community Health Systems Inc)
Alternate Rate of Interest. (a) If Subject to Section 2.13(b) below, if:
(i) (A) prior to the commencement of any Interest Period for a Eurodollar Eurocurrency Borrowing or a Term Benchmark Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate, the Adjusted Term XXXXX Rate or the EURIBO Rate, as applicable (including including, without limitation, because the Term SOFR Reference Relevant Screen Rate for such Interest Period is not available or published on a current basis), basis and such circumstances are unlikely to be temporary) for such Interest Period; provided Period or (B) at any time, for an RFR Borrowing, the Administrative Agent determines that no Benchmark Transition Event adequate and reasonable means do not exist for ascertaining the applicable Daily Simple RFR (each determination under this clause (i) shall have occurred at such timebe made in good faith and shall be conclusive absent manifest error); or
(ii) (A) prior to the commencement of any Interest Period for a Eurocurrency Borrowing or a Term Benchmark Borrowing in any Applicable Currency, the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Adjusted Term Benchmark BorrowingSOFR Rate, the Adjusted Term SOFR XXXXX Rate or the EURIBO Rate, as applicable, for a Loan in such Applicable Currency or for the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their the Loans (or its Loan) included in such Borrowing for such Interest PeriodPeriod or (B) at any time, for an RFR Borrowing, the Administrative Agent is advised by Xxxxxxx constituting Required Lenders that the applicable Daily Simple RFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining the Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail in writing as promptly as practicable thereafter setting forth in reasonable detail the basis for such determination and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and if the affected currency is Dollars, then (yA) in the Borrower delivers case of a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any or Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing denominated in Dollars, at the Borrower’s election, (1) shall be ineffective, and ineffective or (ii2) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, if Borrowing and (B) in the circumstances giving rise to such notice affect fewer than allonly one Types case of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is Borrowing denominated in Dollars outstanding on the date of the Borrower’s receipt of the such notice from the Administrative Agent referred to in this Section 2.11(aAgent, at the Borrower’s election, (1) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall be repaid at the end of the applicable Interest Period or (2) such Loan shall be converted, on the last day of the Interest Period applicable thereto, to an ABR Borrowing and (ii) if the affected currency is an Alternative Currency, then (A) (1) in the case of a Borrowing Request or Interest Election Request that requests a Term Benchmark Borrowing denominated in Canadian Dollars, at the Borrower’s election, (x) shall be ineffective or (y) shall be made as a Borrowing denominated in Canadian Dollars bearing interest at the Canadian Prime Rate plus the Applicable Rate for ABR Loans and (2) in the case of any Term Benchmark Borrowing denominated in Canadian Dollars outstanding on the date of the Borrower’s receipt of such Loannotice from the Administrative Agent, at the Borrower’s election, (x) such Loan shall be repaid at the end of the applicable Interest Period or (y) such Loan shall be converted, on the last day of the Interest Period applicable thereto, to a Borrowing denominated in Canadian Dollars bearing interest at the Canadian Prime Rate plus the Applicable Rate for ABR Loans, (B) in the case of a Borrowing Request or Interest Election Request that requests a Eurocurrency Borrowing denominated in such Alternative Currency and for such Interest Period or any RFR Borrowing, as applicable, at the Borrower’s election, (1) shall be ineffective or (2) shall be made as an ABR Borrowing (in an amount equal to the Dollar Equivalent of such Eurocurrency Borrowing or RFR Borrowing, as applicable) and (C) in the case of any Eurocurrency Loan outstanding on the date of the Borrower’s receipt of such notice from the Administrative Agent, such Loan shall be repaid in full at the end of the applicable Interest Period; provided, however, if such Eurocurrency Loan is not so repaid, it shall be converted by the Administrative Agent to, and shall constitute, to an ABR Loan (in an amount equal to the Dollar Equivalent of such Eurocurrency Loan) on the last day of the Interest Period applicable thereto, and (D) in the case of any RFR Loan outstanding on the date of the Borrower’s receipt of such daynotice from the Administrative Agent, such RFR Loan shall be converted to an ABR Loan (in an amount equal to the Dollar Equivalent of such RFR Loan) on the immediately succeeding Business Day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if a Benchmark Transition Event or and its related Benchmark Replacement Date have occurred in respect of any then-current Benchmark for an Early Opt-in Election, as applicableApplicable Currency, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate then-current Benchmark for such Applicable Currency with a Benchmark Replacement. Any such amendment with in respect to a of any Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) any Benchmark Replacement Date and the implementation of any related Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. For the avoidance of doubt, any notice required to be delivered by the Administrative Agent as set forth in this Section 2.13 may be provided, at the option of the Administrative Agent (in its sole discretion), in one or more notices and may be delivered together with, or as part of any amendment which implements any Benchmark Replacement or 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 2.11, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.13.
(e) Notwithstanding anything to the contrary hereinherein 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 for an Applicable Currency is a term rate (including the Adjusted Term SOFR Rate, the Adjusted Term XXXXX Rate or the EURIBO Rate) and either (iA) 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 (iiB) 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 be representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings setting for such Applicable Currency 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 (iA) is subsequently displayed on a screen or information service for a Benchmark for such Applicable Currency (including a Benchmark Replacement) or (iiB) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark for such Applicable Currency (including a Benchmark Replacement), then the Administrative Agent shall may modify the definition of “Interest Period” for all Benchmark settings for such Applicable Currency 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, (i) the Borrower may revoke any request for a Eurocurrency Borrowing, Term Benchmark Borrowing or RFR Borrowing, or conversion to or continuation of Eurocurrency Loans in each affected Applicable Currency to be made, converted or continued during such 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 (x) in the case of a Loan or Borrowing denominated in an Alternative Currency other than Canadian Dollars, an ABR Loan (in an amount equal to the Dollar Equivalent of such Eurocurrency Borrowing or RFR Borrowing, as applicable) or (y) in the case of a Loan or Borrowing denominated in Canadian Dollars, a Loan denominated in Canadian Dollars bearing interest at the Adjusted Daily Compounded XXXXX Rate and (ii) (A) any outstanding affected RFR Loans denominated in Dollars or Term Benchmark Loans will be deemed to have been converted into (x) in the case of Loans denominated in an Alternative Currency other than Canadian Dollars, ABR Loans on the last day of the Interest Period applicable thereto or (y) in the case of Loans denominated in Canadian Dollars, Loans bearing interest at the Adjusted Daily Compounded XXXXX Rate on the last day of the Interest Period, applicable thereto (B) any outstanding affected Eurocurrency Loans shall be prepaid in full at the end of the applicable Interest Period; provided, however, if such Eurocurrency Loan is not so prepaid, it shall be converted to an ABR Loan (in an amount equal to the Dollar Equivalent of such Eurocurrency Loan) and (C) any outstanding affected RFR Loans shall be converted to an ABR Loan (in an amount equal to the Dollar Equivalent of such RFR Loan) on the immediately succeeding Business Day. During any Benchmark Unavailability Period with respect to Dollars or at any time that a tenor for the then-current Benchmark for Dollars is not an Available Tenor, the component of Alternate Base Rate based upon such Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate.
Appears in 1 contract
Samples: Credit Agreement (Blackstone Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(ai) Subject to clauses (bii), (ciii), (div), (ev) and (fvi) of this Section 2.112.10(f), if:
(i1) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference 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
(ii2) the Administrative Agent is advised by the Required Lenders (for this purpose, excluding the 2022 Non-Extended Revolving Credit Lenders) that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (other than any 2022 Non-Extended Revolving Creditor Lender) (or Lender (other than any 2022 Non-Extended Revolving Credit Lender)) of making or maintaining their Loans Borrowings (or its LoanBorrowings) included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders (other than any 2022 Non-Extended Revolving Credit Lender) by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders (other than any 2022 Non-Extended Revolving Credit Lender) that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant benchmark 120 AMERICAS 122173769123894352 rate and (y) the Borrower delivers a new Interest Election Request Notice of Conversion or Continuation in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.6, any Interest Election Request Notice of Conversion or Continuation that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Term SOFR Borrowing may be revoked by the Borrower and, failing that, shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request a Notice of Conversion or a Borrowing Request, as applicable, Continuation for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permittedLoan. Furthermore, if any Term Benchmark SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.10(f)(i) with respect to a Relevant Rate applicable to such the Term Benchmark LoanSOFR Rate, then until (x) the Administrative Agent notifies the Borrower and the Lenders (other than any 2022 Non-Extended Revolving Credit Lender) that the circumstances giving rise to such notice no longer exist with respect to the relevant benchmark rate and (y) the Borrower delivers a new Interest Election Request Notice of Conversion or Continuation in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.6, any such Term Benchmark SOFR Loan shall on the last day of the Interest Period applicable to such LoanTerm 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 on such dayLoan.
(bii) Notwithstanding anything to the contrary hereinherein or in any other Credit Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 (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 any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders (other than any 2022 Non-Extended Revolving Credit Lender) without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Lenders; provided that, with respect to (other than any proposed amendment containing any SOFR2022 Non-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 Extended Revolving Credit Lender) comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..(for this purpose, excluding any 2022 Non-Extended Revolving Credit Lender).
(ciii) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein (including in Section 13.1 of this Agreement) or in any other Credit Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Credit Document.
(div) The Administrative Agent will promptly notify the Borrower and the Lenders (other than any 2022 Non-Extended Revolving Credit Lender) of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fv) below and (v) the 121 AMERICAS 122173769123894352 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 2022 Extended Revolving Credit Lender or Term Loan Lender, as applicable (or group of 2022 Extended Revolving Credit Lenders or Term Loan Lenders) , as applicable), pursuant to this Section 2.112.10(f), 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 heretoto to this AgreementAgreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.112.10(f).
(ev) Notwithstanding anything to the contrary hereinherein 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 (ia) 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 (iib) 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 (ia) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iib) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Credit Agreement (Vistra Corp.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) ), and (f) and (g) of this Section 2.112.15, ifif prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBO Rate, as applicable (including because the Term LIBO ScreenTerm SOFR Reference 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 (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate or the LIBO 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.09 or a new Borrowing Request in accordance with the terms of Section 2.032.06, (A1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, ineffective and (iiB) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead asTerm Benchmark Borrowing shall instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an Adjusted Daily Simple SOFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 2.15(a)(i) or (ii) above or (y) an ABR Borrowing if Adjusted Daily Simple SOFR also is the subject of Section 2.15(a)(i) or (ii) above and (2) any Borrowing Request that requests an Adjusted Daily Simple SOFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx txxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or Adjusted Daily Simple SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.15(a) with respect to a Relevant the Adjusted Term 57 SOFR Rate applicable to such Term Benchmark Loanor Adjusted Daily Simple SOFR, as applicable, 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 2.05 2.09 or a new Borrowing Request in accordance with the terms of Section 2.032.06, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an Adjusted Daily Simple SOFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 2.15(a)(i) or (ii) above or (y) an ABR Loan if Adjusted Daily Simple SOFR also is the subject of Section 2.15(a)(i) or (ii) above, on such day, and (2) any Adjusted Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Hedging Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.15), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (232) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each Class.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document and subject to the proviso below in this paragraph, the Administrative Agent, in consultation with the Borrower, will have the right to make if a Term SOFR Transition Event and its related Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything Date have occurred prior to the contrary hereinReference 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 amendments implementing Loan Document in respect of such Benchmark Replacement Conforming Changes will become effective setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to to, this Agreement.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) Agreement or any occurrence of a Benchmark Transition Event or an Early Opt-in Electionother Loan Document; provided that, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to this clause (fc) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may shall not be made by effective unless 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything has delivered to the contrary herein, at any time (including in connection with Lenders and the implementation of Borrower a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenorNotice.
Appears in 1 contract
Samples: Credit Agreement (Cars.com Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and through (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time (solely if applicable following a Benchmark Replacement or otherwise pursuant to this Section 2.14), that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time (solely if applicable following a Benchmark Replacement or otherwise pursuant to this Section 2.14), Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR is also the subject of Section 2.14(a)(i) or (ii) above; provided that, if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, constitute (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan Borrowing if the Adjusted Daily Simple SOFR is also the subject of Section 2.14(a)(i) or (ii) above; on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Contract shall be deemed not to be a “Loan Document” for purposes of this Section 2.14), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current then‑current Benchmark is a term rate (including the Term SOFR Rate) and either (iA) 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 (iiB) 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 non‑representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or (solely if applicable pursuant to this Section 2.14) RFR Borrowing, 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 request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 Benchmark Loan or (solely if applicable pursuant to this Section 2.14) RFR 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 Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:If
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.112.14, if:
if prior to the commencement of any Interest Period for a Eurodollar Borrowing or a CDOR Rate Borrowing: (i) (a) the Applicable Administrative Agent reasonably 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 (including, without limitation, by means of an Interpolated Rate) the Eurodollar RateAdjusted Term SOFR Adjusted LIBO Rate, the LIBO Rate or the CDOR Rate, as applicable, for (including because the Term SOFR Reference Relevant 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
or (ii) (b) the Applicable Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark BorrowingAdjusted LIBO Rate, the Adjusted Term SOFR LIBO Rate or the CDOR Rate, as applicable, for the applicable Agreed 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 Agreed Currency and such Interest Period; ;, then the Applicable Administrative Agent shall give notice thereof to the Borrower Representative and the Lender or Lenders by telephone or, telecopy or electronic facsimileelectronic mail as promptly as practicable thereafter and, until (x) the Applicable Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (iiA) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Benchmark Eurodollar Borrowing or a CDOR Rate Borrowing, as applicable, shall be ineffective, and (iiii(B) if any Borrowing Request that requests a Eurodollar BorrowingBorrowing or CDOR Rate Borrowingin Dollars, suchTerm Benchmark such Borrowing shall be made asinstead be deemed to be as an Interest Election Request ABR Borrowing or a Borrowing RequestCanadian Prime Rate Borrowing, as applicableapplicableand (C) if any Borrowing Request requests a CDOR Rate Borrowing in Canadian Dollars, for an ABR then such request shall be made as a Canadian Prime Rate Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx the other Types Type of Borrowings shall be permitted. Furthermore, if any Term Benchmark Eurodollar Loan or CDOR Rate Loan is outstanding on the date of the BorrowerBorrower Representative’s receipt of the notice from the Applicable Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Eurodollar Loan or CDOR Rate Loan, as applicable, (i) if such Eurodollar Loan is denominated in Dollars, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 Eurodollar Loan is denominated in Canadian 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 Multicurrency Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan denominated in Canadian Dollars on such day.
(b) Notwithstanding anything to the contrary hereinherein 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), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (23) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, in the case of a Benchmark Transition Event, 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Applicable Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required LendersLenders of each affected Class.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this clause (c), solely with respect to a Loan denominated in 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, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (c) shall not be effective unless 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 Administrative Agent has delivered to the Lenders and the Borrower Representative a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with shall not be required to deliver a Benchmark Replacement will occur prior to the applicable Benchmark Term SOFR Notice after a Term SOFR Transition Start Date..Event and may do so in its sole discretion.
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Applicable Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(de) The Applicable Administrative Agent will promptly notify the Borrower Representative 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 andChanges, (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 Applicable Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14 or any related definitions.
(ef) Notwithstanding anything to the contrary hereinherein 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 or LIBO Rate) and either (iA) 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 Applicable Administrative Agent in its reasonable discretion or (iiB) 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 Applicable 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 Applicable Administrative Agent shall 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 Representative may revoke any request for (i) a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period or (ii) a CDOR Rate Borrowing of, conversion to or continuation of CDOR Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, in each case, failing that, either (x) the Borrower Representative will be deemed to have converted any request for a Eurodollar Borrowing denominated in Dollars into a request for a Borrowing of or conversion to ABR Loans or (y) any CDOR Rate Borrowing denominated in Canadian Dollars into a request for a Borrowing of or conversion to Canadian Prime Rate 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 or 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 ABR or Canadian Prime Rate, as applicable. Furthermore, (i) if any Eurodollar Loan in Dollars is outstanding on the date of the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the LIBO Rate, 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 any CDOR Rate Loan in Canadian Dollars is outstanding on the date of the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the CDOR Rate, 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 Multicurrency Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan denominated in Canadian Dollars on such day.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.113.3, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Daily Effective SOFR or the Adjusted Daily Effective SOFR Rate; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, the Adjusted Daily Effective SOFR Rate 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.10 or a new Borrowing Request in accordance with the terms of Section 2.032.3, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not also the subject of Section 3.3(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Effective SOFR Rate also is the subject of Section 3.3(a)(i) or (ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a3.3(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.10 or a new Borrowing Request in accordance with the terms of Section 2.032.3, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not also the subject of Section 3.3(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Effective SOFR Rate also is the subject of Section 3.3(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative AgentAgent will have the right, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.113.3, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.113.3.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a Term Benchmark Borrowing or RFR 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 request for a
(1) Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Effective SOFR Rate is the subject of a Benchmark Transition Event or (2) an RFR Borrowing into a request for an ABR Borrowing. 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 Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate. Furthermore, if any Term Benchmark Loan or RFR 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 Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 3.3, (1) each such Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Effective SOFR Rate is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Effective SOFR Rate is the subject of a Benchmark Transition Event, and (2) each such RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), and (f) and (fg) of this Section 2.11, ifif prior to the commencement of any Interest Period for a Eurodollar RateTerm Benchmark Borrowing:
(i) 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 Eurodollar RateAdjusted Term Adjusted EurodollarTerm SOFR Rate or EurodollarTerm SOFR Rate, as applicable (including because the Term SOFR Reference Rate is not available or published on a current basis)including, without limitation, by means of an Interpolated Rate) for such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term EurodollarTerm SOFR Rate or EurodollarTerm SOFR 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; then the Administrative Agent shall promptly give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail facsimile as promptly as practicable thereafter and, until (x) 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) with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Eurodollar RateTerm Benchmark Borrowing shall be ineffectiveineffectiveand any and such Borrowing shall be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Request that requests a Eurodollar RateTerm Benchmark Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (1a) or (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 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 (2cb) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark 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, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (c) shall not be effective unless 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 Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with shall not be required to deliver a Benchmark Replacement will occur prior to the applicable Benchmark Term SOFR Notice after a Term SOFR Transition Start Date..Event and may do so in its sole discretion.
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding Replacement, Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(de) 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 andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ffe) 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(ef) Notwithstanding anything to the contrary hereinherein 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 or LIBO Rate) and either (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 EurodollarTerm Benchmark Borrowing of, conversion to or continuation of EurodollarTerm 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 1 contract
Samples: Term Loan Agreement (Daseke, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.12, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), ) for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , would participate in such Borrowing that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lender or applicable Lenders by telephone or, or telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the applicable Borrower and the applicable Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an Adjusted Daily Simple SOFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if Adjusted Daily Simple SOFR also is the subject of Section 2.12(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx the other Types Type of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or Adjusted Daily Simple SOFR Loan is outstanding on the date of the applicable Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.12(a) with respect to a Relevant the Adjusted Term SOFR Rate applicable to such Term Benchmark Loanor Adjusted Daily Simple SOFR, as applicable, then until (x) the Administrative Agent notifies the applicable Borrower and the applicable Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an Adjusted Daily Simple SOFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR Loan if Adjusted Daily Simple SOFR also is the subject of Section 2.12(a)(i) or (ii) above, on such day and (2) any Adjusted Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayLoan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative AgentAgent will have the right, in consultation with the BorrowerCompany, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower Company and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv1) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) below and (v2) 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 2.112.12, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.12.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company 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 Company will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an Adjusted Daily Simple SOFR Borrowing so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate. Furthermore, if any Term Benchmark Loan or Adjusted Daily Simple SOFR Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR, as applicable, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.12, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an Adjusted Daily Simple SOFR Loan so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any Adjusted Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Automatic Data Processing Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses clause (b), clause (c), clause (d), clause (e) and clause (f) of this Section 2.112.15, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate (including including, without limitation, because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Administrative Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail through Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Administrative Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Administrative Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.15(a)(i) or Section 2.15(a)(ii) above or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.15(a)(i) or Section 2.15(a)(ii) above and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Administrative Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(aSection 2.15(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Administrative Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Administrative Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.15(a)(i) or Section 2.15(a)(ii) above, on such day, or (B) an ABR Loan if Adjusted Daily Simple SOFR also is the subject of Section 2.15(a)(i) or Section 2.15(a)(ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.15), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (xi) if a Benchmark Replacement is determined in accordance with clause (1a) 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 (yii) if a Benchmark Replacement is determined in accordance with clause (2b) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Administrative Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fe) 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 2.112.15, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.15.
(e) Notwithstanding anything to the contrary hereinherein 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 RateSOFR) and either (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Administrative Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Administrative Borrower may revoke any request for a Term Benchmark Borrowing or RFR 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 Administrative Borrower will be deemed to have converted (i) any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event or (ii) any such request for an RFR Borrowing into a request for an ABR Borrowing. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Administrative Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.15, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Loan so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
Appears in 1 contract
Samples: Credit Agreement (Archrock, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e), (f) and (fg) of this Section 2.112.18, ifif prior to the commencement of any Interest Period:
(i) 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 Eurodollar RateAdjusted Term SOFR LIBO Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with interest rate applicable to the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing Loans shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such dayAlternate Base Rate.
(b) Notwithstanding anything to the contrary hereinherein or in any other Basic Document (and any Hedge Agreement shall be deemed not to be a “Basic Document” for purposes of this Section 2.18), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Basic 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 Basic Document and (y) if a Benchmark Replacement LEGAL02/4049656702/41783784v137 LEGAL02/40496567v15 LEGAL02/41254404v5 LEGAL02/42659188v3 is determined in accordance with clause (23) 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders and the Borrower without any amendment to all Lenders and the Borrower,to, or further action or consent of any other party to, this Agreement or any other Basic Document so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Basic 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 Basic 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 Basic Document; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (c) shall not be effective unless 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 Administrative Agent has delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with and the Borrower a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..Term SOFR Notice.
(cd) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Basic Document.
(de) 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 andChanges, (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 2.112.18, 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 heretoto to this AgreementAgreement or any other Basic Document, except, in each case, as expressly required pursuant to this Section 2.112.18.
(ef) Notwithstanding anything Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Loan to the contrary herein, be made. During any Benchmark Unavailability Period or at any time (including in connection with the implementation of that a Benchmark Replacement), (i) if tenor for the then-current Benchmark is a term rate (including not an Available Tenor, the Term SOFR Rate) and either (i) component of any Interest Rate based upon the then-current Benchmark or such tenor for such Benchmark is Benchmark, as applicable, will not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent be used in its reasonable discretion or (ii) the regulatory supervisor for the administrator any determination 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.Rate. LEGAL02/4049656702/41783784v137 LEGAL02/40496567v15 LEGAL02/41254404v5 LEGAL02/42659188v3 Article Three SECURITY
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
2.12: (i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because or the Term SOFR Reference 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
or (ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing or the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests requests
85 a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be 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 notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan2.12(a), 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 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 on such dayLoan.
(b) Notwithstanding anything to the contrary hereinherein 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), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(c) In Notwithstanding anything to the contrary herein or in any other Loan Document, in connection with the use, administration, adoption or implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.12.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.the
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.13, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate for such Interest Period (including because the Term SOFR Reference Rate is not available or published on a current basis), for ) and such Interest Period; provided that no Benchmark Transition Event shall have occurred at such timecircumstances are unlikely to be temporary; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark SOFR Borrowing, the Adjusted Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Term SOFR Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) Adjusted Daily Simple SOFR so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.13(a) with respect to a Relevant the Adjusted Term SOFR Rate applicable to such Term Benchmark 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 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an Adjusted Daily Simple SOFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In Notwithstanding anything to the contrary herein or in any other Loan Document, in connection with the use, administration, adoption or implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative Agent, Agent (in consultation with the Borrower, ) will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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) Agreement or any other Loan Document. 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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andin connection with the use, administration, adoption or implementation of a Benchmark Replacement, (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 2.112.13, 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.13.
(ed) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e) 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 Borrowing or continuation of Term SOFR Loans to be made or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term SOFR Borrowing into a request for a Borrowing of or conversion to (A) an Adjusted Daily Simple SOFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. 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 a Relevant Rate applicable to such Term SOFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.13, any Term SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an Adjusted Daily Simple SOFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
Appears in 1 contract
Samples: Bridge Credit Agreement (Viasat Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject Eurocurrency BorrowingSubject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.12, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted LIBOAdjusted Term SOFR Rate (including because the Term ScreenTerm SOFR Reference 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 (B) at any time, that adequate and reasonable means do not exist for ascertaining Adjusted Daily Simple SOFR; or
(ii) the Administrative Agent is advised by a majority in interest of the Required Lenders (or in the case of a EurocurrencyTerm Benchmark Competitive Loan, the Lender that is required to make such Loan) that would participate in such Borrowing that the Eurodollar , LIBO (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lender or applicable Lenders by telephone or, or telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the applicable Borrower and the applicable Lenders that the circumstances giving rise to such notice no longer exist, (iA) with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.07 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing shall be ineffective, and any Eurocurrency Borrowing that is requested to be continued shall be repaid on the last day of the then current Interest Period applicable thereto, and (iiB) if anyTerm Benchmark Borrowing and any Borrowing Request that for a Eurocurrency Borrowing shall be ineffectivethat requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an Adjusted Daily Simple SOFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR BorrowingBorrowing if Adjusted Daily Simple SOFR also is the subject of Section 2.12(a)(i) or (ii) above; provided thatthat (x) if the circumstances giving rise to such notice do not affect all the Lenders, then requests by the applicable Borrower for EurocurrencyTerm Benchmark Competitive Borrowings may be made to Lenders that are not affected thereby and (y) if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx the other Types Type of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day.Benchmark
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower Company may amend this Agreement to replace the Eurodollar LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate such proposed amendment to all Lenders and the Company,date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Replacement 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 Eurodollar 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 ReplacementNotwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative AgentAgent will have the right, in consultation with the BorrowerCompany, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower 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 andChanges, (iv1) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (viv2) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent oror the Required Lenders (or the relevant, if applicable, any Lender (or group of Lenders) Lenders in the case of Eurocurrency Competitive Borrowings)), pursuant to this Section 2.112.12, 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 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 heretoto this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.12.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Automatic Data Processing Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses paragraphs (b), (c), (d), (e) and (f) of this Section 2.11, if2.12:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar that, prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR 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 PeriodPeriod (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.12(a) with respect to a Relevant Rate Adjusted Term SOFR applicable to such Term Benchmark 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 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan Loan, on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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. (p.m., New York City time) , on the fifth (5th) Business Day after the Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause paragraph (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 2.112.12, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.12.
(e) Notwithstanding anything to the contrary hereinherein 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 RateSOFR) and either (iA) 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 (iiB) the regulatory supervisor for the administrator of such Benchmark 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 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 for a borrowing of, conversion to or continuation of a Term Benchmark Borrowing 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 Term Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing. 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 Benchmark Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to Adjusted Term SOFR applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.12, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan, on such day.
Appears in 1 contract
Alternate Rate of Interest. (a) If Subject to Section 2.24, if (in the case of Term Benchmark Borrowings, prior to the commencement of any Interest Period for a Eurodollar Term Benchmark Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:):
(i) 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 (x) adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate Rate, the Term SOFR Rate, Adjusted Daily Simple SOFR, Daily Simple SOFR, CDOR, the Adjusted EURIBOR Rate, the EURIBOR Rate, the Adjusted XXXXX Xxxx, XXXXX Xxxx (including because the Term SOFR Reference Rate such rate is not available or published on a current basis), XXXXX or SARON, as applicable, for the applicable currency and such Interest Period; provided that no Benchmark Transition Event shall have Period (if applicable) or (y) with respect to any such Loan denominated in an Alternate Currency, a fundamental change has occurred at in the foreign exchange or interbank markets with respect to such timeAlternate Currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls); or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar Adjusted Term SOFR Rate, prior to the commencement of any Interest Period for a Term Benchmark BorrowingSOFR Rate, Adjusted Daily Simple SOFR, Daily Simple SOFR, CDOR, the Adjusted Term SOFR Rate EURIBOR Rate, the EURIBOR Rate, the Adjusted XXXXX Xxxx, XXXXX Xxxx, XXXXX or XXXXX, as applicable, for the applicable currency and such Interest Period (if applicable) 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 PeriodPeriod (if applicable); then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing denominated in Dollars to, or continuation of any Borrowing denominated in Dollars as, a EurodollarTerm Term Benchmark Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be deemed to be an Interest Election Request or a Borrowing RequestDaily Simple SOFR Borrowing, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any ineffective (to the extent of the affected Daily Simple SOFR Loans or Term Benchmark Loan is outstanding on Loans or, in the date case of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark LoanLoans, then until (xthe affected Interest Periods) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise such Borrowing shall be converted to such notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall continued as on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, thereto an ABR Loan on such day.
Borrowing, (bii) Notwithstanding anything to the contrary herein, upon the occurrence ofif if any Borrowing Request requests a Term Benchmark Transition Event Borrowing or an Early Opt-Daily Simple SOFR Borrowing denominated in ElectionDollars, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior Borrowing (to the Reference Time in respect of any setting extent of the then-current Benchmarkaffected Daily Simple SOFR Loans or Term Benchmark Loans or, then (x) if a in the case of Term 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based RateLoans, the Lenders affected Interest Periods) shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to made as 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark ReplacementABR Borrowing, (iii) the effectiveness of any Borrowing Request that requests a Term Benchmark Replacement Conforming Changes and, (iv) the removal Borrowing 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 heretoto this Agreement, exceptDaily Simple RFR Borrowing, in each case, as expressly denominated in Alternate Currency (to the extent of the affected Term Benchmark Loans or Daily Simple RFR Loans or, in the case of Term Benchmark Loans, the affected Interest Periods) shall be ineffective and (iv) any outstanding affected Loans denominated in an Alternate Currency, at the Borrower’s election, shall either (x) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternate Currency) immediately (or, in the case of Term Benchmark Loans, at the end of the applicable Interest Period) or (2) be prepaid in full immediately (or, in the case of Term Benchmark Loans, at the end of the applicable Interest Period); provided that if no election is made by the Borrower by the date that is the earlier of (A) three Business Days after receipt by the Borrower of such notice or (B) with respect to a Term Benchmark Loan, the last day of the current Interest Period, the Borrower shall be deemed to have elected clause (x) above. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest (except with respect to any prepayment or conversion of an RFR Loan) on the amount so prepaid or converted, together with any additional amounts required pursuant to this Section 2.112.16.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) 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 Eurodollar RateAdjusted Term SOFR Rate (including because Benchmark for the Term SOFR Reference Rate is not available or published on a current basis), for applicable Agreed Currency and such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate or the EURIBOR Rate for the applicable Agreed 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 Agreed Currency and such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and exist with respect to the relevant Benchmark or (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark SOFR Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR BorrowingBorrowing and (2) any Borrowing Request that requests a SOFR Borrowing shall instead be deemed to be a Borrowing Request for an ABR Borrowing and (B) for Loans denominated in Euro, (1) any Interest Election Request that requests a continuation of any Borrowing as a EURIBOR Borrowing shall instead be deemed to be an Interest Election Request for an ABR Borrowing denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein) and (2) any Borrowing Request that requests a EURIBOR Borrowing shall instead be deemed to be a Borrowing Request for an ABR Borrowing denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein); provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark 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 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark 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 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, any Term Benchmark SOFR Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 Loan, on such dayday and (B) for Loans denominated in Euro, any EURIBOR 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) be, at the Borrower’s option (1) converted into an ABR Loan denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein) or (2) be prepaid by the Borrower (it being agreed that if the Borrower does not make an election prior to the last day of the Interest Period applicable to such Loan, option (1) above will be deemed to have been selected).
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate any then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any proposed amendment to all affected Lenders and the Borrower,, or further action or consent of any other party to, this Agreement Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate a Benchmark with a Benchmark Replacement pursuant to this Section 2.11(b) will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the use, administration, adoption or implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative AgentAgent will have the right, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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, Replacement and (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes andin connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (ivx) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fSection 2.11(e) below and (vy) the commencement or conclusion of any Benchmark Unavailability PeriodPeriod with respect to any applicable Benchmark. 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 2.11Sections 2.11(b), (c), (d), (e) and (f), 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the applicable then-current Benchmark is a term rate (including the Term SOFR Reference Rate or the EURIBOR Screen Rate) and either (iA) 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 (iiB) the regulatory supervisor for the administrator of such Benchmark Xxxxxxxxx has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) is not, or is no longer, subject to an announcement that it is not or will no longer not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent shall 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.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of, any Loan bearing interest with respect to the applicable Benchmark to be made, converted or continued during any Benchmark Unavailability Period and, failing that, (A) any request (or any deemed request for) for any Borrowing denominated in Dollars as, or conversion of any Borrowing denominated in Dollars to, or continuation of any Borrowing denominated in Dollars as, a Term Benchmark Borrowing shall be ineffective and such Borrowing shall be made or converted to or continued as on the last day of the Interest Period applicable thereto an ABR Borrowing and (B) any request (or any deemed request for) for any Borrowing denominated in Euro as, or the continuation of any Borrowing denominated in Euro as, a Term Benchmark Borrowing shall be ineffective and such Borrowing shall be made or converted to on the last day of the Interest Period applicable thereto, an ABR Borrowing denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein).
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (GE HealthCare Technologies Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(ai) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.116.02, if:
(iA) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing or a CDOR Borrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate, the Term SOFR Rate or, the CDORAdjusted Term XXXXX Rate or Term XXXXX (including because the Term SOFR Reference Rate or CDORthe Term XXXXX Reference Rate is not available or published on a current basis), for such Interest Period; provided Period or (B) at any time, that no Benchmark Transition Event shall have occurred at such timeadequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR, Adjusted Daily Simple XXXXX or Daily Simple XXXXX; or
(iiB) the Administrative Agent is advised by the Required Majority Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing or CDOR Borrowing, the Adjusted Term SOFR Rate or CDORAdjusted Term XXXXX 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 PeriodPeriod or (B) at any time, Adjusted Daily Simple SOFR or Adjusted Daily Simple XXXXX 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; then the Administrative Agent shall give notice thereof to the Borrower Parent and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Parent and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, (1) any Interest Election Request that requests for the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Term Benchmark Borrowing and any borrowing request that requests a Term Benchmark Borrowing shall instead be ineffective, and deemed to be a request for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 6.02(a)(i) or (ii) above or (y) an ABR Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 6.02(a)(i) or (ii) above and (2) any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark an RFR Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR Borrowing, and (B) for Loans denominated in Canadian Dollars, any requests for the conversion of any Borrowing to, or continuation of any Borrowing as, a CDORTerm Benchmark Borrowing and any borrowing request that requests a CDORTerm Benchmark Borrowing shall instead be a deemed to be a request for (x) a Borrowing bearing interest by reference to the Adjusted Daily Simple XXXXX, so long as the Adjusted Daily Simple XXXXX is not also the subject of Section 6.02(a)(i) or (ii) above or (y) a C$ Prime Rate Borrowing if the Adjusted Daily Simple XXXXX also is the subject of Section 6.02(a)(i) or (ii) above; provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan, or RFR Loan or CDOR Loan is outstanding on the date of the BorrowerParent’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a6.02(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, or RFR Loan or CDOR Loan, then until (x) the Administrative Agent notifies the Borrower Parent and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new Interest Election Request request in accordance with the terms of Section 2.05 or a new Borrowing Request 5.05, (A) for Loans denominated in accordance with the terms of Section 2.03Dollars, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 6.02(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 6.02(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan and (B) for Loans denominated in an Canadian Dollars, any CDORTerm Benchmark 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), be converted by the Administrative Agent to, and shall constitute, a C$ Prime Rate Loan(x) a Borrowing bearing interest by reference to the Adjusted Daily Simple XXXXX so long as the Adjusted Daily Simple XXXXX is not also the subject of Section 6.02(a)(i) or (ii) above or (y) a C$ Prime Loan if the Adjusted Daily Simple XXXXX also is the subject of Section 6.02(a)(i) or (ii) above, on such day.
(bii) Notwithstanding anything to the contrary hereinherein or in any other Basic Document (and any Hedging Agreement or Cash Management Agreement shall be deemed not to be a “Basic Document” for purposes of this Section 6.02), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 in respect of such Benchmark setting and subsequent Benchmark settings without under any amendment to, or further action or consent of any other party to, this Agreement 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 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,to, or further action or consent of any other party to, this Agreement or any other Basic Document so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Benchmark Replacement from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Majority 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(ciii) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Basic Document, the Administrative AgentAgent will have the right, in consultation with the BorrowerParent, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Basic Document.
(div) The Administrative Agent will promptly notify the Borrower Parent and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.116.02, 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 heretoto to this AgreementAgreement or any other Basic Document, except, in each case, as expressly required pursuant to this Section 2.116.02.
(ev) Notwithstanding anything to the contrary hereinherein or in any other Basic 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 RateRate or the CDOR RateTerm XXXXX) and either (iii) 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 (iiiii) the regulatory supervisor for the administrator of such Benchmark 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 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 (iiiv) if a tenor that was removed pursuant to clause (i) above either (iI) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiII) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(vi) Upon the Parent’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any request for a Term Benchmark Borrowing, or RFR Borrowing or CDOR Borrowing of, conversion to or continuation of Term Benchmark Loans or CDOR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, either (x) the applicable Borrowers will be deemed to have converted any request for (1) a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or conversion to (A) an RFR Borrowing denominated in Dollars so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event or (y) the applicable Borrowers will be deemed to have converted any request for (1) a CDORTerm Benchmark Borrowing denominated in Canadian Dollars into a request for a Borrowing of or conversion to (A) a Borrowing bearing interest by reference to the Adjusted Daily Simple XXXXX, so long as the Adjusted Daily Simple XXXXX is not the subject of Section 6.02(a)(i) or (ii) above or (B) an C$ Prime Rate Borrowing if the Adjusted Daily Simple XXXXX is the subject of Section 6.02(a)(i) or (ii) above. 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 and the component of the C$ Prime Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of C$ Prime Rate. Furthermore, if any Term Benchmark Loan, CDOR Loan or RFR Loan is outstanding on the date of the Parent’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, CDOR Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 6.02, (A) for loans denominated in Dollars, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan and (B) for Loans denominated in Canadian Dollars, any CDORTerm Benchmark 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), be converted by the Administrative Agent to, and shall constitute a C$ Prime Rate Loan, (x) a Borrowing bearing interest by reference to the Adjusted Daily Simple XXXXX so long as the Adjusted Daily Simple XXXXX is not the subject of Section 6.02(a)(i) or (ii) above or (y) a C$ Prime Loan if the Adjusted Daily Simple XXXXX is the subject of Section 6.02(a)(i) or (ii) above, on such day.
Appears in 1 contract
Samples: Credit Agreement (Iron Mountain Inc)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject BorrowingSubject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.12, if:
(i) 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 Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBOTerm SOFR Rate, as applicable (including because the Term LIBO ScreenTerm SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate or the LIBO 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any with respect to the relevant Benchmark and (y) the Borrower delivers a new written Interest Election Request in accordance with the terms of Section 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, any written Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing and any Notice of Borrowing that requests a Term Benchmark Borrowing shall be ineffective, ineffective and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead anyinstead be deemed to be an written Interest Election Request or a Borrowing RequestRequest requests a Eurodollar Borrowing, such Borrowing shall be made as, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with 2.12(a)with respect to a Relevant the Term SOFR Rate applicable to such Term Benchmark 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 written Interest Election Request in accordance with the terms of Section 2.05 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 constitute a ABR Loan on such dayLoan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif 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 Eurodollar LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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. p.m., (New York City time,) on the fifth (5th) Business Day after the Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any proposed amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Replacement 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 Eurodollar 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 ReplacementNotwithstanding Replacement,Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 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 2.112.12, 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 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 heretoto this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.12.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) ), and (f) and (g) of this Section 2.112.14, if:
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), ) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, Borrowing that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Term Adjusted LIBOTerm SOFR Rate or the LIBO Rate, as applicable (including including, without limitation, because the Term LIBO ScreenTerm SOFR Reference Rate is not available or published on a current basis), for such Interest PeriodPeriod or (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR; provided that no Benchmark Transition Event shall have occurred at such time; or
or (ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term LIBOTerm SOFR Rate orfor the LIBO Rate, as applicable, Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or Loan) included in such Borrowing for such Interest Period Period, or (B) at any time, the applicable Adjusted Daily Simple SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail mailthrough any Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (iA) with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, ineffective and (iiB) if any Borrowing Request that requests a Eurodollar Revolving Borrowing, suchTerm Benchmark such Borrowing shall be made asinstead 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.Term Benchmark Borrowing shall instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (1) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (2) an ABR Borrowing; provided that, Borrowing if the circumstances giving rise to such notice affect fewer than allonly one Types Adjusted Daily Simple SOFR also is the subject of Borrowings, then xxxxxx other Types of Borrowings shall be permittedSection 2.14(a)(i) or (ii) above. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR 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 2.05 2.08 or a new Borrowing Request in accordance with the terms of Section 2.03, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.14(a)(i) or (ii) above, on such day., and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan. 58
(b) Notwithstanding anything to the contrary hereinherein 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), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (232) 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark 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, with respect to any proposed amendment containing any SOFR-Based Rate, this clause (c) shall not be effective unless 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 Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent written notice that such Required Lenders accept such amendmentshall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion. No replacement of Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(cdc) In connection with the implementation of a Benchmark ReplacementNotwithstanding Replacement, Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 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 Agreement 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 heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11Loan Document.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark Borrowingborrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowingborrowing, the Adjusted Term SOFR Rate or the Term SOFR 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 borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request for Borrowing in accordance with the terms of Section 2.05 or a new Borrowing 2.6, (1) any Request in accordance with the terms of Section 2.03, any Interest Election Request for Conversion/Continuation that requests the conversion of any Borrowing Base Rate Loan to, or continuation of any Borrowing Base Rate Loan as, a EurodollarTerm Term Benchmark borrowing and any Request for Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing Revolving borrowing shall be made asinstead instead be deemed to be an Interest Election a Request for Conversion/Continuation or a Borrowing RequestRequest for Borrowing, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitteda Base Rate Loan. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan2.14(a), 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 for Borrowing in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.6, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanTerm 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 on such daya Base Rate Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Obligation shall be deemed to be a Loan Document for purposes of this Section 2.14), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(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 applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to 65 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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) the regulatory supervisor for the administrator of such Benchmark 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 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for (1) a Term Benchmark borrowing into a request for a borrowing of or conversion to a Base Rate 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 Benchmark 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 Section 2.14, any Term Benchmark Loan shall 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), be converted by the Agent to, and shall constitute a Base Rate Loan.
Appears in 1 contract
Samples: Credit Agreement (P10, Inc.)
Alternate Rate of Interest. If (ax) If prior to the commencement of any the Interest Period for any Eurocurrency Borrowing or, if the then-current Benchmark is Adjusted Term SOFR, any SOFR Borrowing of a Eurodollar Borrowing:
Class or (ay) Subject to clauses at any time for any RFR Borrowing or, if the then-current Benchmark is Daily Compounded SOFR, any SOFR Borrowing (b), (c), (d), (e) and (f) the Currency of this Section 2.11, if:such Borrowing herein called the “Affected Currency”):
(i) 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 Eurodollar RateAdjusted Term SOFR Rate Benchmark for the Affected Currency for such Interest Period (if applicable) (including because the Term SOFR Reference relevant 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
(ii) the Administrative Agent is advised by the Required Lenders of such Class that the Eurodollar , prior to Benchmark for the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate Affected Currency for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their respective Eurocurrency Loans, SOFR Loans (or its Loan) RFR Loans, as applicable, included in such Borrowing for such Interest PeriodPeriod (if applicable); and, in each case, the provisions of Section 2.11(c) are not applicable, then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic e-mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and any obligation of such Lender (x) to make RFR Borrowings or, if the then-current Benchmark is Daily Compounded SOFR, SOFR Borrowings, (y) to make or continue Eurocurrency Borrowings or, if the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 then-current Benchmark is Adjusted Term SOFR, SOFR Borrowings or a new Borrowing Request in accordance with the terms of Section 2.03(z) to convert ABR Borrowings to Eurocurrency Borrowings or SOFR Borrowings shall be suspended, (ii) any Interest Election Request that requests the conversion of any Eurocurrency Borrowing or SOFR Borrowing to, or the continuation of any Borrowing as, a EurodollarTerm Benchmark Eurocurrency Borrowing or SOFR Borrowing denominated in the Affected Currency, shall be ineffective and, in each case, unless prepaid, (x) if the Affected Currency is Dollars, such Borrowing shall be ineffectivecontinued as, or converted to, an ABR Borrowing and, (y) if the Affected Currency is a Foreign Currency (other than Canadian Dollars), such Borrowing shall be converted to Dollars based on the Dollar Equivalent at such time and shall be an ABR Borrowing and (iiz) if the Affected Currency is Canadian Dollars, such Borrowing shall be continued as, or converted to, a Borrowing at the Canadian Prime Rate, (iii) if the Affected Currency is Dollars, any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Eurocurrency Borrowing or SOFR Borrowing denominated in the Affected Currency shall be made asinstead as an ABR Borrowing and, (iv) if the Affected Currency is a Foreign Currency (other than Canadian Dollars), any Borrowing Request that requests a Eurocurrency Borrowing or an RFR Borrowing denominated in the Affected Currency shall be deemed to be an Interest Election ineffective and (v) if the Affected Currency is Canadian Dollars, any Borrowing Request or that requests a Borrowing Requestdenominated in the Affected Currency shall be made at the Canadian Prime Rate. Furthermore, as applicableif any Eurocurrency Loan or SOFR Loan in any Currency is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to the Benchmark applicable to such Eurocurrency Loan or SOFR Loan, for then (1) if any such Eurocurrency Loan is denominated in Dollars, on the last day of the Interest Period applicable to such Loan (or, if the then-current Benchmark is Daily Compounded SOFR, immediately), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Borrowing; provided thatLoan denominated in Dollars on such day (or immediately), (2) if any such Eurocurrency Loan is denominated in any Foreign Currency (other than Canadian Dollars), such Loan shall, on the last day of the Interest Period applicable to such Loan, at the Borrower’s election prior to such day: (A) be prepaid 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 Loan) 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, New York City 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 this subclause (B), upon the Borrower’s receipt of notice from the Administrative Agent that the circumstances giving rise to the aforementioned notice no longer exist and with the Borrower’s consent (which may be given in its sole discretion), such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in such original Currency (in an amount equal to the Foreign Currency Equivalent of such Loan) on the day of such notice affect fewer than allonly one Types being given to the Borrower by the Administrative Agent, (3) if such Loan is denominated in Canadian Dollars, such Loan shall, on the last day of Borrowingsthe Interest Period applicable to such Loan, then xxxxxx other Types at the Borrower’s election prior to such day: (A) be prepaid on such day or (B) be converted by the Administrative Agent to, and (subject to the remainder of Borrowings this subclause (B)) shall constitute, a Loan where the Benchmark is equal to the Canadian Prime Rate (it being understood and agreed that if the Borrower do not so prepay such Loan on such day by 12:00 noon, New York City Time, the Administrative Agent is authorized to effect such conversion of such Loan into a Loan where the Benchmark is equal to the Canadian Prime Rate), (4) if the then-current Benchmark is Adjusted Term SOFR, on the last day of the Interest Period applicable to any such SOFR Loan, such Loan shall be permittedconverted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or (45) if the then-current Benchmark is Daily Compounded SOFR, immediately, such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day. Furthermore, if any Term Benchmark RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate the Daily Simple RFR applicable to such Term Benchmark RFR Loan, then until such Loan shall, at the Borrower’s election prior to such day: (xA) be prepaid on such day or (B) be converted by the Administrative Agent notifies 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 Loan) on such day (it being understood and agreed that if the Borrower and does not so prepay such Loan on such day by 12:00 noon, New York City time, the Lenders Administrative Agent is authorized to effect such conversion of such RFR Loan into an ABR Loan denominated in Dollars), and, in the case of this subclause (B), upon the Borrower’s receipt of notice from the Administrative Agent that the circumstances giving rise to such the aforementioned notice no longer exist and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request Borrower’s consent (which may be given in accordance with the terms of Section 2.03its sole discretion), any Term Benchmark such ABR Loan denominated in Dollars shall on the last day of the Interest Period applicable to such Loan, then be converted by the Administrative Agent to, and shall constitute, an ABR RFR Loan on such day.
(b) Notwithstanding anything in an amount equal to the contrary hereinForeign Currency Equivalent of such Loan) on the day of such notice being given to the Borrower by the Administrative Agent. If the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Adjusted LIBO Rate, upon the occurrence ofif a Benchmark Transition Event Daily Compounded SOFR or an Early Opt-in ElectionAdjusted Term SOFR, as applicable, cannot be determined pursuant to the applicable definition thereof, the Alternate Base Rate shall be determined by the Administrative Agent and the Borrower may amend this Agreement without reference to replace the Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 (1c) of the definition of “Benchmark ReplacementAlternate Base Rate” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder 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 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 in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after until the Administrative Agent has posted suchdate notice of revokes such Benchmark Replacement is proposvided to the Lenders without determination. Upon any amendment to all Lenders and the Borrower,, such prepayment or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rateconversion, the Lenders Borrower 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 also pay accrued interest 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 amount so prepaid 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 Electionconverted, as applicable, (ii) the implementation of together with any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and, (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 heretoto this Agreement, except, in each case, as expressly additional amounts required pursuant to this Section 2.112.13.
(e) Notwithstanding anything to the contrary herein, 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 (i) 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 (ii) 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (MONROE CAPITAL Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error), ) prior to the commencement of any Interest Period for a Term Benchmark Borrowingborrowing, that adequate and reasonable means do not exist for ascertaining the Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowingborrowing, the Adjusted Term SOFR Rate or the Term SOFR 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 borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request Notice of Borrowing in accordance with the terms of Section 2.05 or a new Borrowing 2.6, (1) any Request in accordance with the terms of Section 2.03, any Interest Election Request for Conversion/Continuation that requests the conversion of any Borrowing Base Rate Loan to, or continuation of any Borrowing Base Rate Loan as, a EurodollarTerm Term Benchmark borrowing and any Request for Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Term Benchmark Borrowing Revolving borrowing shall be made asinstead instead be deemed to be an Interest Election a Request for Conversion/Continuation or a Borrowing RequestRequest for Borrowing, as applicable, for an ABR Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitteda Base Rate Loan. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan2.14(a), 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 for Borrowing in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.032.6, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanTerm 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 on such daya Base Rate Loan.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document (and any Swap Obligation shall be deemed to be a Loan Document for purposes of this Section 2.14), upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..each affected Class.
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify Notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 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 request for (1) a Term Benchmark borrowing into a request for a borrowing of or conversion to a Base Rate 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 Benchmark 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 Section 2.14, any Term Benchmark Loan shall 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), be converted by the Agent to, and shall constitute a Base Rate Loan.
Appears in 1 contract
Samples: Credit Agreement (P10, Inc.)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.112.14, if:
(i) 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 Eurodollar RateAdjusted Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference 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
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate or the Term SOFR 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; then the Administrative Agent shall give notice thereof to the Borrower Representative and the Lender or Lenders by telephone or, telecopy or electronic mail through Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and (y) exist with respect to the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm relevant Benchmark each Term Benchmark Borrowing shall instead be ineffective, deemed to be (x) a Base Rate Borrowing and (ii2) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm an Term Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR a Base Rate Borrowing; provided that, if the circumstances giving rise to such notice affect fewer than allonly one Types of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the BorrowerBorrower Representative’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(aSection 2.14(a) with respect to a Relevant the Term SOFR Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist and with respect to the relevant Benchmark, (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 Base Rate Loan on such day.
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif if 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 Administrative Agent has posted suchdate date notice of such Benchmark Replacement is proposvided provided to the Lenders without any amendment to all Lenders and the Borrower,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 proposed amendmentBenchmark Benchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding Notwithstanding anything to the contrary hereinherein or in any other Loan Document, the Administrative Agent, in consultation with the Borrower, Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower Representative and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes andChanges, (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 2.112.14, 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 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.112.14.
(e) Notwithstanding anything to the contrary hereinherein 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 (iA) 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 (iiB) 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) 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 shall 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 Borrowers may revoke any request for a Term Benchmark Borrowing of Term Benchmark Loans to be made during any Benchmark Unavailability Period and, failing that, the Borrowers will be deemed to have converted (1) any such request for a Term Benchmark Borrowing into a request for a Base Rate Borrowing. 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 Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower Representative’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.14, (1) any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
Appears in 1 contract
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
if prior to the first day of any Interest Period for a Benchmark Borrowing denominated in any currency: (i) 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 Daily Simple SOFR for Dollars, or the Eurodollar RateAdjusted Term SOFR Euribor Rate (for the Optional Currency, and for any requested Interest Period, including because the Term SOFR Reference Euribor 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
or (ii) the Administrative Agent is advised by the Required Lenders that Daily Simple SOFR for Dollars, or the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Euribor Rate for such the Optional Currency, and any requested 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 ), including in such Borrowing for the applicable currency and such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (ix) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request interest election request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Daily Simple SOFR Loan shall be ineffective, (y) if any Borrowing request requests Daily Simple SOFR Loans, such Borrowing shall be made as ABR Loans and (z) if any Borrowing request requests a Euribor Rate Borrowing for the relevant rate above in the Optional Currency, such Borrowing shall be ineffective; provided, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead be 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 notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark 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 2.11(a) 2.11 with respect to a Relevant Rate the applicable rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and exist, then (yi) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark such Daily Simple SOFR Loan shall on the last day of the Interest Period applicable to such Loan, immediately be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars and (ii) if such Benchmark Loan is denominated in the Optional Currency, then such Loan shall, on such day.
(b) Notwithstanding anything to the contrary herein, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting last day of the then-current Benchmark, then Interest Period applicable to such Loan (x) if a Benchmark Replacement is determined in accordance with clause (1) of or the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder 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 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 in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) next succeeding Business Day after if such day is not a Business Day) bear interest at the Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to Central Bank Rate plus the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement from Lenders comprising the Required LendersApplicable Margin; 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 if the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
determines (c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 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 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 which 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 shall be conclusive and binding absent manifest error and may error) that the Central Bank Rate for the Optional Currency cannot be made determined, any outstanding affected Benchmark Loans denominated in its or their sole discretion and without consent from any other party heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary hereinOptional Currency shall, at any time the Borrower’s election prior to such day: (including in connection with A) be prepaid by the implementation Borrower on such day or (B) solely for the purpose of a Benchmark Replacement), (i) if calculating the then-current Benchmark is a term interest rate (including the Term SOFR Rate) and either (i) any tenor for applicable to 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 (ii) the regulatory supervisor for the administrator of Loan, such Benchmark has provided Loan denominated in the Optional Currency shall be deemed to be a public statement or publication of information announcing that any tenor for Daily Simple SOFR Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Daily Simple SOFR Loans denominated in Dollars at 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 (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenortime.
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Alternate Rate of Interest. (ai) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:Borrowing of Eurocurrency Loans or SOFR Loans (or at any time, in the case of a Borrowing of RFR Loans):
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i1) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error)) that, prior to the commencement by reason of any Interest Period for a Term Benchmark Borrowingchanges arising after the Second Amendment Effective Date affecting the interbank Eurocurrency market, that adequate and reasonable means do not exist for ascertaining (x) the Eurodollar RateAdjusted Term SOFR Eurocurrency Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Eurocurrency Loan for such Interest Period; provided that no Benchmark Transition Event shall have occurred at Period or, (y) Adjusted Term SOFR for such timeSOFR Loan for such Interest Period or (z) Daily Simple XXXXX for such RFR Loan; or
(ii2) the Administrative Agent is advised by the Required Majority Lenders in respect of each of the Facilities with affected Eurocurrency Loans, SOFR Loans or RFR Loans (as applicable) that (x) the Eurodollar , prior to the commencement of any Interest Period Eurocurrency Rate for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate such Eurocurrency Loan 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 PeriodPeriod or, (y) Adjusted Term SOFR for such SOFR Loan for such Interest Period will not adequately or fairly reflect the cost to Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period or (z) Daily Simple XXXXX will not adequately and fairly reflect the cost to Lenders of making or maintaining their RFR Loans included in such Borrowing; then the Administrative Agent shall give written notice thereof to the Borrower Company and the Lender or Lenders by telephone or, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such notice no longer exist, (ix) and (y) the Borrower delivers a new Interest Election Request in accordance with the terms any Notice of Section 2.05 Conversion or a new Borrowing Request in accordance with the terms of Section 2.03, any Interest Election Request Continuation that requests the conversion of any Borrowing Loan to, or continuation of any Borrowing Loan as, a EurodollarTerm Benchmark Borrowing Eurocurrency Loan or SOFR Loan in the Eurocurrency Rate or Adjusted Term SOFR (as applicable) that is unavailable because the conditions described in clauses (i) and (ii) above have been satisfied (such unavailable rate, the “Unavailable Rate”), shall be ineffective, and (iiy) if any Notice of Borrowing Request that requests a Eurodollar BorrowingEurocurrency Loan, suchTerm Benchmark SOFR Loan or an RFR Loan with an Unavailable Rate, (1) if such Notice of Borrowing is for a Loan in Dollars or if an alternative rate of interest is not in effect pursuant to clause (2) below, then notwithstanding anything to the contrary in this Agreement, the applicable Borrower may cancel such Loan or such Loan shall be made asinstead be deemed to be an Interest Election Request as a Base Rate Loan in Dollars or a (2) if such Notice of Borrowing Request, as applicable, is for an ABR Borrowing; provided Alternative Currency Loan, then notwithstanding anything to the contrary in this Agreement, the applicable Borrower may cancel such Loan or the Administrative Agent may, in consultation with Company, propose to Company in writing an alternative interest rate for the affected Loan that, if accepted by Company in a writing delivered to the circumstances giving rise to such notice affect fewer than allonly one Types Administrative Agent within 1 Business Day of Borrowings, then xxxxxx other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the BorrowerCompany’s receipt of the notice from the Administrative Agent referred to in this Section 2.11(a) such written proposal, shall apply with respect to a Relevant Rate applicable to such Term Benchmark Loan, then the affected Loan until (xA) the Administrative Agent notifies the Borrower Company and the Lenders that the circumstances giving rise to such the notice described above no longer exist and exist, (yB) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent tois advised by the applicable Majority Lenders that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in the affected Borrowing or (C) solely with respect to such Borrowing such Lender determines that any law or regulation 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 authority of such Lender to do any of the foregoing and provides the Administrative Agent and Company written notice thereof; provided that, notwithstanding the foregoing, all Eurocurrency Rates, Adjusted Term SOFR and Daily Simple XXXXX (other than any then applicable Unavailable Rates) shall remain available for Borrowings until such rate shall be an Unavailable Rate.
(ii) If at any time the Administrative Agent determines (which determination shall be final and conclusive and binding upon all parties hereto) that (A) the circumstances set forth in clause (i)(1) above have arisen and such circumstances are unlikely to be temporary or (B) the circumstances set forth in clause (i)(1) above have not arisen but the supervisor for the administrator of the US LIBOR Screen Rate, EURIBOR Screen Rate, 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 US LIBOR Screen Rate, EURIBOR Screen Rate or LIBOR Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and Company shall endeavor to establish an alternate rate of interest to the applicable Eurocurrency Rate that is or will become unavailable and that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States (or such other applicable jurisdiction applicable to the currency in which such Loans are denominated pursuant to the definition of “Eurocurrency Rate”) at such time, and shall constituteenter 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, an ABR Loan on if such day.
(b) alternate rate of interest shall be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement. Notwithstanding anything to the contrary hereinin Section 12.1, upon the occurrence ofif 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 Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any amendment to all Lenders and the Borrower,, or further action or consent of any other party to, this Agreement so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date..
(c) In connection with the implementation of a Benchmark ReplacementNotwithstanding anything to the contrary herein, the Administrative Agent, in consultation with 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 Agreement so long as the Administrative Agent will promptly notify shall not have received, within five Business Days of the Borrower and date that a draft of such amendment is provided to the Lenders, a written notice from the Majority Lenders in respect of (i) any occurrence each of a Benchmark Transition Event or the applicable Facilities stating that such Majority Lenders object to such amendment. Until an Early Opt-alternate rate of interest shall be determined in Election, as applicable, accordance with this clause (ii) (but, in the implementation case of any Benchmark Replacementthe circumstances described in clause (B) of the first sentence of this Section 3.6(b)(ii), only to the extent the US LIBOR Screen Rate, EURIBOR Screen Rate or LIBOR Screen Rate for such Interest Period is not available or published at such time on a current basis), (iiix) the effectiveness of any Benchmark Replacement Conforming Changes and, (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 no Loans may be made by as or converted to Eurocurrency Rate Loans that are based on such unavailable rate, and 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, Loans based on such unavailable 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 shall be made in its as or their sole discretion and without consent from any other party heretoto this Agreement, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary herein, at any time (including in connection with the implementation of a Benchmark Replacement)converted to, (i) if with respect to Loans denominated in an Alternative Currency, the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (i) 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 (ii) 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 Daily Rate and (ii) if a tenor that with respect to Loans denominated in Dollars, Base Rate Loans, each on the first day of the Interest Period immediately following an Interest Rate Determination Date, and (y) any Notice of Borrowing or Notice of Conversion or Continuation given by any Borrower with respect to the Loans in respect of which such determination was removed pursuant made shall be deemed to clause (i) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) 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 shall modify the definition of “Interest Period” for all Benchmark settings at or after rescinded by such time to reinstate such previously removed tenorBorrower.
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Samples: Credit Agreement (BALL Corp)
Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:
(i) 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 Eurodollar RateAdjusted Term SOFR Rate (including because Benchmark for the Term SOFR Reference Rate is not available or published on a current basis), for applicable Agreed Currency and such Interest Period; provided that no Benchmark Transition Event shall have occurred at such time; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar , prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate or the EURIBOR Rate for the applicable Agreed 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 Agreed Currency and such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lender or Lenders by telephone ortelephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) and exist with respect to the relevant Benchmark or (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, (1) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark SOFR Borrowing shall be ineffective, and (ii) if any Borrowing Request that requests a Eurodollar Borrowing, suchTerm Benchmark Borrowing shall be made asinstead instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for an ABR BorrowingBorrowing and (2) any Borrowing Request that requests a SOFR Borrowing shall instead be deemed to be a Borrowing Request for an ABR Borrowing and (B) for Loans denominated in Euro, (1) any Interest Election Request that requests a continuation of any Borrowing as a EURIBOR Borrowing shall instead be deemed to be an Interest Election Request for an ABR Borrowing denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein) and (2) any Borrowing Request that requests a EURIBOR Borrowing shall instead be deemed to be a Borrowing Request for an ABR Borrowing denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein); provided that, that if the circumstances giving rise to such notice affect fewer than allonly only one Types Type of Borrowings, then xxxxxx all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark 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 2.11(a) with respect to a Relevant Rate applicable to such Term Benchmark 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 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, any Term Benchmark SOFR Loan shall on the last day of the Interest Period applicable to such LoanLoan (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 Loan, on such dayday and (B) for Loans denominated in Euro, any EURIBOR 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) be, at the Borrower’s option (1) converted into an ABR Loan denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein) or (2) be prepaid by the Borrower (it being agreed that if the Borrower does not make an election prior to the last day of the Interest Period applicable to such Loan, option (1) above will be deemed to have been selected).
(b) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, upon the occurrence ofif of a Benchmark Transition Event or an Early Opt-in Election, as applicableEvent, the Administrative Agent and the Borrower may amend this Agreement to replace the Eurodollar Rate any then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. 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 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 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 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 Administrative Agent has posted suchdate notice of such Benchmark Replacement is proposvided to the Lenders without any proposed amendment to all Lenders affected Xxxxxxx and the Borrower,, or further action or consent of any other party to, this Agreement Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendmentBenchmark Replacement 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 Eurodollar Rate a Benchmark with a Benchmark Replacement pursuant to this Section 2.11(b) will occur prior to the applicable Benchmark Transition Start Date...
(c) In connection with the use, administration, adoption or implementation of a Benchmark ReplacementNotwithstanding anything to the contrary hereinReplacement, the Administrative AgentAgent will have the right, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary hereinherein 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 AgreementAgreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders and Issuing Banks of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes andin connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (ivx) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fSection 2.11(e) below and (vy) the commencement or conclusion of any Benchmark Unavailability PeriodPeriod with respect to any applicable Benchmark. 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 2.11Sections 2.11(b), (c), (d), (e) and (f), 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 heretoto to this AgreementAgreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.11.
(e) Notwithstanding anything to the contrary hereinherein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the applicable then-current Benchmark is a term rate (including the Term SOFR Reference Rate or the EURIBOR Screen Rate) and either (iA) 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 (iiB) the regulatory supervisor for the administrator of such Benchmark Xxxxxxxxx has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not 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 (iA) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (iiB) is not, or is no longer, subject to an announcement that it is not or will no longer not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent shall 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.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of, any Loan bearing interest with respect to the applicable Benchmark to be made, converted or continued during any Benchmark Unavailability Period and, failing that, (A) any request (or any deemed request for) for any Borrowing denominated in Dollars as, or conversion of any Borrowing denominated in Dollars to, or continuation of any Borrowing denominated in Dollars as, a Term Benchmark Borrowing shall be ineffective and such Borrowing shall be made or converted to or continued as on the last day of the Interest Period applicable thereto an ABR Borrowing and (B) any request (or any deemed request for) for any Borrowing denominated in Euro as, or the continuation of any Borrowing denominated in Euro as, a Term Benchmark Borrowing shall be ineffective and such Borrowing shall be made or converted to on the last day of the Interest Period applicable thereto, an ABR Borrowing denominated in Dollars (in an amount equal to the USD Equivalent of the amount in Euro requested therein).
Appears in 1 contract
