Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date. (ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document. (iii) The Administrative Agent shall promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section. (iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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. (v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Root, Inc.), Term Loan Agreement (Root, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Document (and any Hedge Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 1.12), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a will have the right to make Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ive) below and (yv) 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 SectionSection 1.12, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.Section 1.12 and/or any component definition used herein
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference RateSOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing ofSOFR Borrowing, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request for a SOFR Borrowing into a request for a Borrowing of or conversion to Base Rate Loansan ABR Borrowing. During a 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 ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall will not be used in any determination of ABR. Furthermore, if any SOFR Loan is outstanding on the Base Ratedate of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to Adjusted Term SOFR applicable to such SOFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 1.12, any 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.
(f) The interest rate on a Loan denominated in US Dollar may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, this Section 1.12 provides a mechanism for determining an alternative rate of interest. Without limiting the express terms hereof, he Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) by any such information source or service. It is understood and agreed that this Section 1.12(f) shall not impair or otherwise limit the express provisions of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Dayforce, Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Credit Document, upon the occurrence of a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, the Administrative Agent, the Required Lenders Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lxxxxxx and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateLenders.
(ii) In connection with the use, administration, adoption administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary contained herein or in any other Loan Credit Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan DocumentAgreement.
(iii) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent orin consultation with, if applicableor subject to consent rights of, any Lender (or group of Lenders) pursuant to the Borrower as expressly set forth in this SectionSection 2.10(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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Credit Document, except, in each case, as expressly required pursuant to this SectionSection 2.10(d).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark ReplacementSOFR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (in consultation with including Benchmark Replacement) settings and (ii) the Required Lenders and the Borrower) Administrative Agent may modify the definition of “Interest Period” (or reinstate any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenortenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower 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 Borrower shall will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate LoansABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a 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 ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall will not be used in any determination of the Base RateABR.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Documentdocument related to this Agreement, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Purchaser and the Borrower Seller may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective on upon the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that execution and delivery of such Required Lenders accept such amendmentamendment by Xxxxxxxxx and Seller. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 2(j) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Purchaser will have the right, in consultation with the BorrowerSeller, to make Benchmark Replacement Conforming Changes from time to time and, and notwithstanding anything to the contrary contained herein or in any other Loan Documentdocument related to this Agreement, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan DocumentSeller.
(iii) The Administrative Agent shall Purchaser will promptly notify the Borrower and the Lenders Seller of (i) any occurrence of a Benchmark Transition Event, (iiA) the implementation of any Benchmark Replacement, Replacement and (iiiB) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) . Purchaser will promptly notify Seller of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability Periodbelow. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) Purchaser pursuant to this SectionSection 2(j), 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan DocumentSeller, except, in each case, as expressly required pursuant to this SectionSection 2(j).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Documentdocument related to this Agreement, 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 Reference Rate) and either (Ax) 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 Purchaser in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (By) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Purchaser may modify the definition of “Interest Term SOFR 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 (iiB) if a tenor that was removed pursuant to clause (iA) above either (Ax) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (By) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Purchaser may modify the definition of “Interest Term SOFR Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) Upon the BorrowerSeller’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Seller may revoke any request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Ratepending Purchase Request.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Lifetime Brands, Inc)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower Co- Issuers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that the Lenders comprising the Required Lenders have delivered to fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Investors and the Co-Issuers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from the Investor Groups holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments (provided that such Required Lenders accept such amendmentthe Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 3.04(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 3.04(d). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender Investor (or group of LendersInvestors) pursuant to this SectionSection 3.04, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Transaction Document, except, in each case, as expressly required pursuant to this SectionSection 3.04.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Transaction 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 Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Note Purchase Agreement (Driven Brands Holdings Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentLenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 1.16(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 1.16(d). 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 SectionSection 1.16, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 1.16.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark 748271253 Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall will not be used in any determination of the Base Rate.
(f) In connection with the use, administration of, or conventions associated with, Term SOFR and the Term SOFR Reference Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will reasonably promptly notify the Borrower and the Lenders of the effectiveness of any such Conforming Changes.
(g) Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the continuation of, administration of, submission of, calculation of, or any other matter related to “Adjusted Term SOFR”, “Base Rate”, “SOFR”, “Term SOFR” and the “Term SOFR Reference Rate” any component definition thereof or rates referenced in the definition thereof or any alternative or successor rate thereto, or replacement rate thereof (including, without 748271253 limitation, (i) any then-current Benchmark or any Benchmark Replacement, (ii) any alternative, successor or replacement rate implemented pursuant to Section 1.16, whether upon the occurrence of a Benchmark Transition Event and (iii) the effect, implementation or composition of any Conforming Changes, including without limitation, (A) whether the composition or characteristics of any such alternative, successor or replacement reference rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as Base Rate, the existing Benchmark or any subsequent Benchmark Replacement prior to its discontinuance or unavailability (including Adjusted Term SOFR, Term SOFR, the Term SOFR Reference Rate or any other Benchmark), and (B) the impact or effect of such alternative, successor or replacement reference rate or Conforming Changes on any other financial products or agreements in effect or offered by or to any obligor or Lender or any of their respective Affiliates. Administrative Agent may select information sources or services in its reasonable discretion to ascertain any Base Rate or any Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate or any Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to Borrower.
(h) The Borrower and each other Loan Party (including those that that become party hereto after the date hereof), in its respective capacity as a Borrower, debtor, obligor, grantor, pledgor, guarantor, assignor, or other similar capacity in which such party acts as direct or indirect, or primary or secondary, obligor, accommodation party or guarantor or grants liens or security interests in or to its properties hereunder or under any other Loan Document, hereby acknowledges and agrees to be bound by the provisions of this Section titled “Benchmark Replacement Setting” (including, without limitation, the implementation from time to time of any Benchmark Replacement and any Conforming Changes in accordance herewith) and, in furtherance of the forgoing (and without, in any way express or implied, invalidating, impairing or otherwise negatively affecting any obligations heretofore provided) hereby acknowledges and agrees that in connection with and after giving effect to any Benchmark Cessation Changes: (i) its Obligations shall not in any way be novated, discharged or otherwise impaired, and shall continue, be ratified and be affirmed and shall remain in full force in effect, (ii) its grant of a guarantee, pledge, assignment or any other accommodation, lien or security interests in or to its properties relating to this Agreement or any other Loan Document shall continue, be ratified and be affirmed, and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired and (iii) the Loan Documents and its obligations thereunder (contingent or otherwise) shall continue, be ratified and be affirmed and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired. In addition, each Loan Party hereby fully waives any requirements to notify 748271253 such Loan Party of any Benchmark Cessation Changes (except as expressly provided in this Section titled “Benchmark Replacement Setting”). In furtherance of the foregoing, each Loan Party hereby (i) appoints Borrower (and the Borrower hereby accepts such appointment) as its agent, attorney-in-fact and representative for purposes of the delivery of any and all documents, instruments, agreements and other materials required to be delivered by any such party and for all other administrative purposes incidental to any of the foregoing provisions of this clause (h) and this Section titled “Benchmark Replacement Setting” and (ii) hereby authorizes the Borrower to take such actions, execute, acknowledge, and deliver, or cause to be executed, acknowledged and delivered, such further agreements, documents or instruments that are reasonably necessary or desirable to carry out the intent and purpose of this Section (h) and this Section titled “Benchmark Replacement Setting” on its behalf. From time to time, the Borrower (both in its individual capacity and in its capacity as agent, agent, attorney-in-fact and representative of each other Loan Party pursuant to the immediately preceding sentence) and the Loan Parties shall execute and deliver, or cause to be executed and delivered, such instruments, agreements, certificates or documents, and take all such actions, as the Administrative Agent may reasonably request for the purposes implementing or effectuating the provisions of this Section titled “Benchmark Replacement Setting”, or of renewing, continuing, reaffirming or ratifying the rights of the Administrative Agent and the other Lenders with respect to the Obligations or the Collateral.
Appears in 1 contract
Samples: Credit Agreement (StoneX Group Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document (and any Swap Contract shall be deemed not to be a “Loan Document” for purposes of this Section):
(a) On March 5, upon 2021 the occurrence of a Benchmark Transition EventFinancial Conduct Authority (“FCA”), the Administrative Agentregulatory supervisor of USD LIBOR administrator (“IBA”), announced in a public statement the Required Lenders future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12- month USD LIBOR tenor settings. On the Borrower may amend this Agreement earlier of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to replace be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on is USD LIBOR, the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable will replace such Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation for all purposes hereunder and under any Loan Document in respect of a any setting of such Benchmark Replacement, the Administrative Agent on such day and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(iiib) Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each Class. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During the period referenced in the foregoing sentence, the component of Base Rate based upon the Benchmark will not be used in any determination of Base Rate.
(c) In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Documenthereto, except, in each case, as expressly required pursuant to this SectionSection 2.06.
(ive) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark ReplacementUSD LIBOR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (in consultation with including Benchmark Replacement) settings and (ii) the Required Lenders and the Borrower) Administrative Agent may modify the definition of “Interest Period” (or reinstate any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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 (including Benchmark or such tenor for such Benchmark, as applicable, shall not be used in any determination of the Base RateReplacement) settings.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document (and any Hedge Agreement shall be deemed not to be a “Loan Document, at any time (including in connection with the implementation ” for purposes of this Section 2.12(e)) if a Benchmark Replacement)Transition Event or an Early Opt-in Election, (i) if as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is a term rate determined in accordance with clause (including a)(i) or (a)(ii) of the Term SOFR Reference Rate) and either (A) any tenor 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 (a)(iii) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders and the BXC Representative 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 displayed on received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders (and the Lenders hereby (i) authorize and direct the Administrative Agent to implement any Benchmark Replacement and related Benchmark Replacement Adjustment that has been selected or agreed to by the BXC Representative or in respect of which the Administrative Agent has received a screen or other information service that publishes such rate direction from time the BXC Representative to time as selected by implement and (ii) the Administrative Agent shall be entitled to all of the exculpations, protections and indemnifications provided for in this Agreement in favor of the Administrative Agent in its reasonable discretion (implementing any Benchmark Replacement and related Benchmark Replacement Adjustment that has been selected or agreed to by the BXC Representative, or in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator respect of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then which the Administrative Agent (in consultation with has received a direction from the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time BXC Representative to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacementimplement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Cross Country Healthcare Inc)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Documentthis Agreement, upon the occurrence of if a Benchmark Transition Event, the Administrative Agent, the Required Lenders Event and the Borrower may amend this Agreement to replace its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with Benchmark, then (x) if a Benchmark Replacement pursuant to these provisions shall occur prior is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of the Borrower, the Class A Trustee, any Holder or any other Person and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided by the Liquidity Provider to the applicable Borrower and United without any amendment to this Agreement, or further action or consent of the Borrower, the Class A Trustee, any Holder or any other Person, so long as the Liquidity Provider has not received, by such time, written notice of objection to such Benchmark Transition Start DateReplacement from the Borrower or United.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Liquidity Provider will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time in consultation with United, and, notwithstanding anything to the contrary contained herein or in any other Loan Documentherein, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of the Borrower, the Class A Trustee, any other party to this Agreement Holder or any other Loan DocumentPerson.
(iiic) The Administrative Agent shall Liquidity Provider will promptly notify the Borrower Borrower, the Class A Trustee and the Lenders United of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Liquidity Provider will notify the Borrower, the Class A Trustee and (iv) United of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below Section 3.11(d), and (y) 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) Liquidity Provider pursuant to this SectionSection 3.11, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from the Borrower, the Class A Trustee, any other party to this Agreement Holder or any other Loan DocumentPerson, except, in each case, as expressly required pursuant to this SectionSection 3.11.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) ), and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (Liquidity Provider in consultation with the Required Lenders and the Borrower) United or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Liquidity Provider may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Liquidity Provider 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; provided, that in no event will any of the foregoing changes (including with respect to Interest Periods) result in changes to when interest is required to be paid (which shall at all times remain consistent with the relevant dates for which distributions to the Liquidity Provider are contemplated or otherwise permitted under the Intercreditor Agreement).
(ve) 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 outstanding principal amount of the SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Advances shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for Advances, effective the then-current Benchmark is not an Available Tenor, the component first day of the Base Rate based upon next succeeding Interest Period; provided, that, if prior to the then-current Benchmark or such tenor for such Benchmarkcommencement of (or, as applicable, shall not be used in any the date for determination of the applicable Benchmark for) such or any subsequent Interest Period, an applicable Benchmark Replacement has been established and become effective, then effective on the first day of such Interest Period for which the Benchmark Replacement is so effective, such Base RateRate Advances will be converted to Advances accruing interest based on the relevant Benchmark Replacement.
(f) As used in this Section 3.11, the following terms have the following meanings:
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein in this Agreement or any other Credit Documents, if at any time (i) the Administrative Agent (at the direction of the Required Lenders), in consultation with the Borrower, determines in good faith (which determination shall be conclusive absent manifest error) or (ii) the Borrower or Required Lenders notify the Administrative Agent in writing (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or Required Lenders (as applicable) have determined that a LIBOR Discontinuance Event has occurred, then, at or promptly after the LIBOR Discontinuance Event Time, the Administrative Agent and Borrower shall endeavor to establish an alternate benchmark rate to replace LIBOR under this Agreement, together with any spread or adjustment to be applied to such alternate benchmark rate to account for the effects of transition from LIBOR to such alternate benchmark rate, giving due consideration to the then prevailing market convention for determining a rate of interest (including the application of a spread and the making of other appropriate adjustments to such alternate benchmark rate and this Agreement to account for the effects of transition from LIBOR to such replacement benchmark, including any changes necessary to reflect the available interest periods and timing for determining such alternate benchmark rate) for syndicated leveraged loans of this type in the United States at such time and any recommendations (if any) therefor by a Relevant Governmental Sponsor, provided that any such alternate benchmark rate and adjustments shall be required to be commercially practicable for the Administrative Agent to administer (as determined by the Administrative Agent in its sole discretion) (any such rate, the “Successor LIBOR Rate”).herein or in any other Loan Credit Document, upon the occurrence of if a Benchmark Transition EventEvent and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any 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 date notice of such Benchmark Replacement is provided to the Lenders and Borrower without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis. After such determination that a LIBOR Discontinuance Event has occurred, promptly following the LIBOR Discontinuance Event Time, the Administrative AgentAgent and the Borrower shall enter into an amendment to this Agreement to reflect such Successor LIBOR Rate and such other related changes to this Agreement as may be necessary or appropriate, as the Administrative Agent (at the direction of the Required Lenders), in consultation with the Borrower, may determine in good faith (which determination shall be conclusive absent manifest error), to implement and give effect to the Successor LIBOR Rate under this Agreement on the LIBOR Replacement Date and, notwithstanding anything to the contrary in Section 13.1, such amendment shall become effective for each Class of Loans and Lenders without any further action or consent of any other party to this Agreement on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower may amend this Agreement unless, prior to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment. No replacement of ; provided, that if a Benchmark with a Benchmark Replacement Successor LIBOR Rate has not been established pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with foregoing, at the use, administration, adoption or implementation option of a Benchmark Replacementthe Borrower, the Administrative Agent Borrower and the Required Lenders may select a different Successor LIBOR Rate that is commercially practicable for the Administrative Agent to administer (as determined by the Administrative Agent in its sole discretion) and, upon not less than 15 Business Days’ prior written notice to the Administrative Agent, the Administrative Agent, such Required Lenders and the Borrower shall have the right, in consultation with the Borrower, enter into an amendment to make Conforming Changes from time this Agreement to time reflect such Successor LIBOR Rate and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary contained herein or in any other Loan DocumentSection 13.1, any amendments implementing such Conforming Changes amendment shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
Agreement; provided, further, that if no Successor LIBOR Rate has been determined pursuant to the foregoing and a Scheduled Unavailability Date (iiias defined in the definition of “LIBOR Discontinuance Event”) The has occurred, the Administrative Agent shall will promptly so notify the Borrower and the Lenders of each Lender and thereafter, until such Successor LIBOR Rate has been determined pursuant to this paragraph, (i) any occurrence of a Benchmark Transition Eventrequest for Borrowing, (ii) the implementation conversion of any Benchmark ReplacementBorrowing to, (iii) the effectiveness or continuation of any Conforming ChangesBorrowing as, and (iv) (x) the removal or reinstatement a Borrowing of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, LIBOR Loans shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 ineffective and (ii) if all outstanding Borrowings shall be converted to an ABR Loan Borrowing until a tenor that was removed Successor LIBOR Rate has been chosen pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is notthis paragraph. Notwithstanding anything else herein, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the any definition of “Interest Period” (or any similar or analogous definition) Successor LIBOR Rate shall provide that in no event shall such Successor LIBOR Rate be less than 1.00% per annum for all Benchmark settings at or after such time to reinstate such previously removed tenorpurposes of this Agreement.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Second Lien Credit Agreement (BrightSpring Health Services, Inc.)
Benchmark Replacement Setting. (ia) the Administrative Agent shall have determined in good faith (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate, orBenchmark Replacement. Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of if a Benchmark Transition Event, the Administrative Agent, the Required Lenders Event and the Borrower may amend this Agreement its related Benchmark Replacement Date have occurred prior to replace any setting of the then-current Benchmark with Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement. Any ” 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 with respect to to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Transition Event shall become effective Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (Central time) on the fifth (5th) Business Day after the date that notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders have delivered Lenders.
(b) prior to the first day of any Interest Period the Administrative Agent written shall have received notice that such from Required Lenders accept that they have concluded in good faith that the Eurodollar Rate determined or to be determined for such amendment. No replacement Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of a Benchmark with a making or maintaining their affected Loans during such Interest Period, Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The . the Administrative Agent shall give telecopy or telephonic notice (confirmed promptly notify in writing) thereof to the Borrower and the relevant Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) as soon as practicable thereafter. If such notice is given (x) the removal or reinstatement of any tenor of a Benchmark pursuant Eurodollar Loans requested to clause (iv) below and be made shall be made as ABR Loans, (y) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election Loans that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant were to this Section, including any determination with respect have been converted 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, Eurodollar Loans shall be conclusive continued as ABR Loans and binding absent manifest error and may (z) any outstanding Eurodollar Loans shall be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Documentconverted, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to on the contrary herein or in any other Loan Document, at any time (including in connection with the implementation last day of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Interest Period or monthly period, as the Term SOFR Reference Rate) and either (A) any tenor for case may be, to ABR Loans. Until such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected notice has been withdrawn by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) Agent, no further Eurodollar Loans shall be made or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativecontinued as such, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, nor shall the Borrower may revoke any request for a Borrowing of, conversion have the right to or continuation of SOFR convert Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Eurodollar Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of if a Benchmark Transition Event, Event and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace Reference Time in respect of any setting of the then-current Benchmark, then the Benchmark with a Replacement will replace such Benchmark Replacement. Any such amendment with for all purposes hereunder and under any Transaction Document in respect to a of any Benchmark Transition Event shall become effective setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date that notice of such Benchmark Replacement is provided to the Lenders Purchasers without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as the Administrator has not received, by such time, written notice of objection to such Benchmark Replacement from Purchasers comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateMajority Purchaser Agents.
(ii) In connection with the use, administration, adoption or implementation and administration of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Administrator will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iii) The Administrative Agent shall Administrator will promptly notify the Borrower Seller and the Lenders Purchaser Agents of (iA) any occurrence of a Benchmark Transition EventEvent and its related Benchmark Replacement Date, (iiB) the implementation of any Benchmark Replacement, (iiiC) the effectiveness of any Conforming Changes, and (iv) (xD) the removal or reinstatement of any tenor of a Benchmark pursuant to clause paragraph (iv) below and (yE) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent Administrator or, if applicable, any Lender Purchaser (or group of LendersPurchasers) pursuant to this SectionSection 1.24, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, Transaction Document except, in each case, as expressly required pursuant to this SectionSection 1.24.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Transaction 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 Reference Rate) and either (AI) 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 Administrator in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (BII) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Administrator 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 (iiB) if a tenor that was removed pursuant to clause (iA) above either (AI) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (BII) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Administrator 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.
(v) Upon the BorrowerSeller’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Seller may revoke any request for a Borrowing ofPurchase, or a conversion to or continuation of Purchases, bearing interest at the SOFR Loans Rate to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall Seller will be deemed to have converted any such request into a request for a Borrowing Purchase, or a conversion of or conversion a Purchase, bearing interest at the Base Rate, and, for the avoidance of doubt, all outstanding Purchases bearing interest at the SOFR Rate shall automatically be converted to Purchases bearing interest at the Base Rate LoansRate. During a 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 Alternate Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall will not be used in any determination of the Base Alternate Rate.
(vi) As used in this Section 1.24:
Appears in 1 contract
Samples: Receivables Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Benchmark Replacement Setting. (a) If any Lender shall have determined (which determination shall be conclusive and binding upon the parties hereto absent manifest error) on any day, by reason of circumstances affecting the interbank Eurodollar market, either that: (i) Notwithstanding anything dollar deposits in the relevant amounts and for the relevant Interest Period or day, as applicable, are not available, (ii) adequate and reasonable means do not exist for ascertaining Adjusted LIBOR or LMIR for such Interest Period or day, as applicable, or (iii) Adjusted LIBOR or LMIR determined pursuant hereto does not accurately reflect the cost to the contrary contained herein applicable Affected Person (as conclusively determined by the related Lender) of maintaining any Portion of any Loan Amount during such Interest Period or day, as applicable, until such Lender shall promptly give telephonic notice of such determination, confirmed in any other Loan Documentwriting, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written and Borrower on such day. Upon delivery of such notice: (i) no Portion of any Loan Amount shall be funded thereafter at Adjusted LIBOR or LMIR unless and until such Lender shall have given notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders Borrower that the circumstances giving rise to such determination no longer exist and (ii) with respect to any outstanding Portion of any Loan Amount then funded at Adjusted LIBOR or LMIR, such Interest Rate shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything automatically and immediately be converted to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan DocumentBase Rate.
(iiib) The Administrative Agent If on any day any Lender shall promptly have been notified by any Lender that such Lender has determined (which determination shall be final and conclusive absent manifest error) that any Change in Law, or compliance by such Lender with any Change in Law, shall make it unlawful or impossible for such Lender to fund or maintain any Portion of any Loan Amount at or by reference to Adjusted LIBOR or LMIR, such Lender shall notify the Borrower and the Lenders Administrative Agent thereof. Upon receipt of such notice, such Lender notifies the Borrower and the Administrative Agent that the circumstances giving rise to such determination no longer apply, (i) no Portion of any occurrence of a Benchmark Transition Event, Loan Amount shall be funded at or by reference to Adjusted LIBOR or LMIR and (ii) the implementation Interest Rate for any outstanding Portion of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, Loan Amount then funded at Adjusted LIBOR or LMIR shall automatically and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant immediately be converted to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Receivables Financing Agreement (Compass Minerals International Inc)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) 10.26.1 Notwithstanding anything to the contrary herein or in any other Loan Credit Document, at any time (including in connection with the implementation of if a Benchmark Replacement)Transition Event or an Early Opt-in Election, (i) if as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is a term rate determined in accordance with clause (including 1) or (2) of the Term SOFR Reference Rate) and either (A) any tenor 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 or further action or consent of any other party hereto or to any other Credit Document, and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting that occurs more than five (5) Business Days after the date notice of such Benchmark Replacement is provided to the Lenders, without any amendment or further action or consent of any other party hereto or to any other Credit Document, so long as the Administrative Agent has not displayed on a screen or other information service that publishes received, by such rate time, written notice of objection to such Benchmark Replacement from time to time as selected Lenders comprising the Required Lenders. Borrower shall pay all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ fees) incurred by the Administrative Agent in its reasonable discretion (in consultation connection with the Required Lenders and negotiation or enforcement of the Borrowerterms hereof or any related matters contemplated in this Section titled “Benchmark Replacement Setting” (this “Section”) or (B) to the regulatory supervisor for extent required by Section 10.08 hereof. For purposes of this Section, any interest rate hedging agreement related to the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not loan evidenced hereby shall be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify excluded from the definition of a “Interest PeriodCredit Document.” (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 The parties hereto acknowledge that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark Transition Event has occurred with respect to LIBOR with the public announcements on March 5, 2021, by the ICE Benchmark Administration (including a Benchmark ReplacementIBA) or and the U.K. Financial Conduct Authority (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark ReplacementFCA), then that the Administrative Agent (in consultation with IBA will permanently cease to publish all remaining tenors of LIBOR on June 30, 2023, for which the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for all related Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) 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 SOFR Loans Replacement Date is anticipated to be madeJune 30, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate2023.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary herein contained herein or in any other Loan Document (and any Hedge Transaction shall be deemed not to be a “Loan Document” for the purposes of this Section):
(a) On May 16, upon the occurrence of a 2022 Refinitiv Benchmark Transition EventServices (UK) Limited (“RBSL”), the Administrative Agentadministrator of the CDOR Rate, announced in a public statement that the Required Lenders calculation and publication of all tenors of the Borrower may amend this Agreement CDOR Rate will permanently cease immediately following a final publication on Friday, June 28, 2024. On the date that all Available Tenors of the CDOR Rate have either permanently or indefinitely ceased to replace be provided by RBSL (the “CDOR Cessation Date”), if the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on is the date that CDOR Rate, the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable will replace such Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation for all purposes hereunder and under any Loan Document in respect of a any setting of such Benchmark Replacement, the Administrative Agent on such day and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Compounded XXXXX, all interest payments will be payable on a monthly basis.
(iiib) Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (Toronto time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the administrator or the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Advances to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Prime-Based Loans. During the period referenced in the foregoing sentence, the component of the Prime Rate based upon the Benchmark will not be used in any determination of the Prime Rate.
(c) In connection with the implementation and administration of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(d) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (ii) any occurrence of a Term XXXXX Transition Event, and (iii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability Period. Any DOCPROPERTY "CUS_DocIDChunk0" NATDOCS\70776052\V-4 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, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Documenthereto, except, in each case, as expressly required pursuant to this Section.
(ive) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term XXXXX or the Term SOFR Reference CDOR Rate), then (i) and either (A) the Agent may remove 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 (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 for Benchmark (including Benchmark Replacement) settings, and (ii) the Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(f) Notwithstanding anything to the contrary herein or in any Loan Document and subject to the proviso below in this paragraph, if a tenor that was removed pursuant to clause Term XXXXX Transition Event and its related Term XXXXX Transition Date have occurred, then on and after such Term XXXXX Transition Date (i) above either the Benchmark Replacement described in paragraph (A1)(A) is subsequently displayed of such definition will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of any setting of such Benchmark on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is notsuch day and all subsequent settings, without any amendment to, or is no longerfurther action or consent of any other party to, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (this Agreement or any similar or analogous definitionother Loan Document; and (ii) for all each Advance outstanding on the Term XXXXX Transition Date bearing interest based on the then-current Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) Upon shall convert, on the Borrower’s receipt of notice last day of the commencement then-current interest payment period, into an Advance bearing interest at the Benchmark Replacement described in paragraph (1)(A) of a Benchmark Unavailability Period, such definition for the respective Available Tenor as selected by the Borrower may revoke any request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor as is available for the then-current Benchmark is not an Available TenorBenchmark; provided that, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, this paragraph (f) shall not be used in any determination effective unless the Agent has delivered to the Lenders and the Borrower a Term XXXXX Notice, and so long as the Agent has not received, by 5:00 p.m. (Toronto time) on the fifth (5th) Business Day after the date of the Base RateTerm XXXXX Notice, written notice of objection to such conversion to Term XXXXX from Lenders comprising the Required Lenders or the Borrower.
(g) For the purposes of this Section 5.8, the following terms have the following meanings:
Appears in 1 contract
Samples: Fourth Amended and Restated Credit Agreement (Village Farms International, Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of if a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace Reference Time in respect of any setting of the then-current Benchmark with Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement. Any ” 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 with respect to to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Transition Event shall become effective Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (Local Time) on the fifth Business Day after the date that notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateLenders.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (iA) any occurrence of a Benchmark Transition Event, (ii) Replacement Date and the implementation of any related Benchmark Replacement, (iiiB) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (xC) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (yD) 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 2.14 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 Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this SectionSection 2.14, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.14.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iI) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rateor USD LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 (iiII) if a tenor that was removed pursuant to clause (iI) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Borrowing of, conversion to or continuation of SOFR Eurocurrency Term Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate ABR Term Loans. During a 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 ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall will not be used in any determination of ABR.
(vi) The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to (A) the Base administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation any Benchmark Replacement implemented hereunder), (B) the composition or characteristics of any such Benchmark Replacement, including whether it is similar to, or produces the same value or economic equivalence to USD LIBOR (or any other Benchmark) or have the same volume or liquidity as did USD LIBOR (or any other Benchmark), (C) any actions or use of its discretion or other decisions or determinations made with respect to any matters covered by this Section 2.14 including, without limitation, whether or not a Benchmark Transition Event has occurred, the removal or lack thereof of unavailable or non-representative tenors, the implementation or lack thereof of any Benchmark Replacement Conforming Changes, the delivery or non-delivery of any notices required by clause (iv) above or otherwise in accordance herewith, and (D) the effect of any of the foregoing provisions of this Section 2.14.
(vii) As used in this Section 2.14:
Appears in 1 contract
Samples: Credit Agreement (TravelCenters of America Inc. /MD/)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. on the date that fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentLenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 2.17.2(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (iA) any occurrence of a Benchmark Transition Event, (iiB) the implementation of any Benchmark Replacement, (iiiC) the effectiveness of any Conforming ChangesChanges in connection with the use, and administration, adoption or implementation of a Benchmark Replacement, (iv) (xD) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 2.17.2(d) below and (yE) 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 SectionSection 2.17.2, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.17.2.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A1) 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 (in consultation with the Required Lenders and the Borrower) or (B2) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 unavailable, non-representative, non-compliant or non-representative aligned tenor and (iiB) if a tenor that was removed pursuant to clause (iA) above either (A1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B2) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) 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 borrowing of SOFR Loans to be made, converted or continued made during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base RatePeriod.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.)
Benchmark Replacement Setting. After such determination that a LIBOR Discontinuance Event has occurred, promptly following the LIBOR Discontinuance Event Time, the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such Successor LIBOR Rate and such other related changes to this Agreement as may be necessary or appropriate, as the Administrative Agent, in consultation with the Borrower, may determine in good faith (which determination shall be conclusive absent manifest error), to implement and give effect to the Successor LIBOR Rate under this Agreement on the LIBOR Replacement Date and, (i) Notwithstanding nNotwithstanding anything to the contrary contained herein in Section 13.1, such amendment shall become effective for each Class of Loans and Lendersherein or in any other Loan Credit Document, upon the occurrence of if a Benchmark Transition EventEvent and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any 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, the Required Agent shall have posted such proposed amendment to all Lenders and the Borrower may amend this Agreement unless, prior to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment. No replacement of ; provided, that if a Benchmark with a Benchmark Replacement Successor LIBOR Rate has not been established pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with foregoing, at the use, administration, adoption or implementation option of a Benchmark Replacementthe Borrower, the Administrative Agent Borrower and the Required Lenders may select a different Successor LIBOR Rate that is commercially practicable for the Administrative Agent to administer (as determined by the Administrative Agent in its sole discretion) and, upon not less than 15 Business Days’ prior written notice to the Administrative Agent, the Administrative Agent, such Required Lenders and the Borrower shall have the right, in consultation with the Borrower, enter into an amendment to make Conforming Changes from time this Agreement to time reflect such Successor LIBOR Rate and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary contained herein or in any other Loan DocumentSection 13.1, any amendments implementing such Conforming Changes amendment shall become effective without anydate notice of such Benchmark Replacement is provided to the Lenders and Borrower without any amendment to, or further action or consent of any other party to, this Agreement; provided, further, that if no Successor LIBOR Rate has been determined pursuant to this Agreement or any other Loan Document.
the foregoing and a Scheduled Unavailability Date (iiias defined in the definition of “LIBOR Discontinuance Event”) The has occurred, the Administrative Agent shall will promptly so notify the Borrower and the Lenders of each Lender and thereafter, until such Successor LIBOR Rate has been determined pursuant to this paragraph, (i) any occurrence of a Benchmark Transition Eventrequest for Borrowing, (ii) the implementation conversion of any Benchmark ReplacementBorrowing to, (iii) the effectiveness or continuation of any Conforming ChangesBorrowing as, and (iv) (x) the removal or reinstatement a Borrowing of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, LIBOR Loans shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 ineffective and (ii) if all outstanding Borrowings shall be converted to an ABR Loan Borrowing until a tenor that was removed Successor LIBOR Rate has been chosen pursuant to clause (i) above either (A) is subsequently displayed on a screen this paragraph. Notwithstanding anything else herein, any definition of Successor LIBOR Rate shall provide that in no event shall such Successor LIBOR Rate be less than zero for purposes of this Agreement. or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then any other Credit Document so long as the Administrative Agent (in consultation with has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders and Lenders. If the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for Benchmark Replacement is Daily Simple SOFR, all Benchmark settings at or after such time to reinstate such previously removed tenorinterest payments will be payable on a monthly basis.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Joinder Agreement and Amendment No. 6 (BrightSpring Health Services, Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Credit Document:
(i) On March 5, upon 2021 the occurrence of a Benchmark Transition EventFinancial Conduct Authority (“FCA”), the Administrative Agentregulatory supervisor of USD LIBOR’s administrator (“IBA”), announced in a public statement the Required Lenders future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-month USD LIBOR tenor settings. On the Borrower may amend this Agreement earlier of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to replace be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on is USD LIBOR, the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable will replace such Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation for all purposes hereunder and under any Loan Document in respect of a any setting of such Benchmark Replacement, the Administrative Agent on such day and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(ii) Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each Class. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans. During the period referenced in the foregoing sentence, the component of ABR based upon the Benchmark will not be used in any determination of ABR.
(iii) In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iv) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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 SectionSection 2.18(b), 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Documenthereto, except, in each case, as expressly required pursuant to this SectionSection 2.18(b).
(ivv) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark ReplacementUSD LIBOR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (in consultation with including Benchmark Replacement) settings and (ii) the Required Lenders and the Borrower) Administrative Agent may modify the definition of “Interest Period” (or reinstate any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenortenor for Benchmark (including Benchmark Replacement) settings.
(vvi) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be As used in any determination of the Base Rate.this Section 2.18(b):
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Documentthis Agreement, upon the occurrence of if a Benchmark Transition Event, the Administrative Agent, the Required Lenders Event and the Borrower may amend this Agreement to replace its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with Benchmark, then (x) if a Benchmark Replacement pursuant to these provisions shall occur prior is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of the Borrower, the Class AA Trustee, any Holder or any other Person and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided by the Liquidity Provider to the applicable Borrower and United without any amendment to this Agreement, or further action or consent of the Borrower, the Class AA Trustee, any Holder or any other Person, so long as the Liquidity Provider has not received, by such time, written notice of objection to such Benchmark Transition Start DateReplacement from the Borrower or United.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Liquidity Provider will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time in consultation with United, and, notwithstanding anything to the contrary contained herein or in any other Loan Documentherein, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of the Borrower, the Class AA Trustee, any other party to this Agreement Holder or any other Loan DocumentPerson.
(iiic) The Administrative Agent shall Liquidity Provider will promptly notify the Borrower Borrower, the Class AA Trustee and the Lenders United of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Liquidity Provider will notify the Borrower, the Class AA Trustee and (iv) United of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below Section 3.11(d), and (y) 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) Liquidity Provider pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or nonRevolving Credit Agreement - UAL 2024-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.1AA
Appears in 1 contract
Benchmark Replacement Setting. (a) Subject to clauses (b), (c), (d), (e), and (f) of this Section 3.03, if prior to the commencement of any Interest Period for a SOFR Borrowing:
(i) Notwithstanding anything the Administrative Agent determines that Adjusted Term SOFR cannot be determined pursuant to the contrary contained herein definition thereof; or
(ii) the Majority Lenders determine that for any reason in connection with any request for a SOFR Loan or in a conversion thereto or a continuation thereof that Adjusted Term SOFR for any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment requested Interest Period with respect to a Benchmark Transition Event shall become effective on proposed SOFR Loan does not adequately and fairly reflect the date that cost to such Lenders of funding such Loan, and the Lenders comprising the Required Majority Lenders have delivered provided notice of such determination to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, Agent; the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall will promptly so notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability Periodeach Lender. Any determination, decision or election that may be made Upon notice thereof by the Administrative Agent or, if applicableto the Borrower, any Lender obligation of the Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or group of Lendersaffected Interest Periods) pursuant to this Section, including any determination until the Administrative Agent (with respect to a tenorclause (ii), rate or adjustment or at the instruction of the occurrence or non-occurrence Majority Lenders) revokes such notice. Upon receipt of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement)such notice, (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) 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 borrowing of, conversion to or continuation of SOFR Loans (to be made, converted the extent of the affected SOFR Loans or continued during any Benchmark Unavailability Period andaffected Interest Periods) or, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate LoansABR Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period. During a Benchmark Unavailability Period or at Upon any time that a tenor for the then-current Benchmark is not an Available Tenorsuch conversion, the component Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 5.02. Subject to clauses (b), (d), (c) and (f) of this Section 3.03, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without reference to clause (c) of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall not be used in any determination definition of the “Alternate Base Rate” until the Administrative Agent revokes such determination.
Appears in 1 contract
Samples: Credit Agreement (BKV Corp)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document (and any Swap Contract shall be deemed not to be a “Transaction Document” for purposes of this Section 2(p)), upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the fifth Business Day after the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that of such Required Lenders accept amendment (without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document) and such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable will replace such Benchmark Transition Start Datefor all purposes hereunder and under any Transaction Document in respect of any Benchmark setting.
(iib) In connection with Notwithstanding anything to the usecontrary herein or in any other Transaction Document, administration, adoption or implementation of a Benchmark Replacementupon the Agent and Bxxxxxxx’s written agreement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(vd) 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 SOFR Loans Loan to be made, converted or continued made during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for Loans determined using 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, shall not be used in any determination of the Base Alternative Interest Rate.
Appears in 1 contract
Samples: Credit Agreement (Guggenheim Taxable Municipal Bond & Investment Grade Debt Trust)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, :
(a) upon the occurrence of a Benchmark Transition EventEvent with respect to any Benchmark, the Administrative Agent, the Required Lenders Administrator and the Borrower Company may amend this Agreement to replace the then-current such Benchmark with a Benchmark Replacement. Any such amendment with respect to Replacing USD LIBOR. On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of USD LIBOR’s administrator (“IBA”), announced in a Benchmark Transition Event shall become effective on public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12-month USD LIBOR tenor settings. On the earlier of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be provided by IBA or have been announced by the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement FCA pursuant to these provisions shall occur prior public statement or publication of information to the applicable Benchmark Transition Start Date.
be no longer representative (ii) In connection with the useEarly Opt-in Effective Date and (iii) an Other Benchmark Rate Effective Date, administration, adoption or implementation of a if the then-current Benchmark Replacementis USD LIBOR, the Administrative Agent Benchmark Replacement will replace such Benchmark for all purposes hereunder and the Required Lenders shall have the right, under any Transaction Document in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in respect of any other Loan Document, any amendments implementing setting of such Conforming Changes shall become effective Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iii) The Administrative Agent shall promptly notify ; provided that, in the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole Administrator’s discretion and without obligation to do so, if an Other Benchmark Rate Effective Date has not occurred and the Administrator determines that Term SOFR has become available and has been recommended for use by the Relevant Governmental Body, is administratively feasible for the Administrator and would have been identified as the Benchmark Replacement then in effect was so identified, and the Administrator notifies the Seller and the Purchasers of such availability, then, if the Seller consents thereto (which consent the Seller may grant or withhold in its sole discretion), from and after the beginning of the next Settlement Period commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall be Term SOFR (giving effect to any other party spread adjustment to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection Term SOFR that is consistent with the implementation of a prevailing market convention for similar U.S. dollar credit facilities). If the Benchmark Replacement)Replacement is Daily Simple SOFR, (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed all Discount will be 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 (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 tenormonthly basis.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Receivables Purchase Agreement (LyondellBasell Industries N.V.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of if a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace Reference Time in respect of any setting of the then-current Benchmark with Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement. Any ” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment with respect to to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Transition Event shall become effective 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 Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. New York City time on the fifth (5th) Business Day after the date that 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 Transaction Document so long as the Administrative Agent has not received, by such time, 738967635 16499153 written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateMajority Lenders.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition EventEvent , 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, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 4.05(d) below and (yv) 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 SectionSection 4.05, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Transaction Document, except, in each case, as expressly required pursuant to this SectionSection 4.05.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Transaction 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 Reference Rateor USD LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing ofLoan bearing interest based on USD LIBOR, conversion to or continuation of SOFR Loans bearing interest based on USD LIBOR to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing Loan of or conversion to Loans 738967635 16499153 bearing interest under the Base Rate LoansRate. During a 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, shall will not be used in any determination of the Base Rate.
(f) Notwithstanding anything to the contrary herein or in any other Transaction 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 (i) the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting (the “Secondary Term SOFR Conversion Date”) and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document; and (ii) Loans outstanding on the Secondary Term SOFR Conversion Date bearing interest based on the then-current Benchmark shall be deemed to have been converted to Loans bearing interest at the Benchmark Replacement with a tenor approximately the same length as the interest payment period of the then-current Benchmark; provided that, this Section 4.05(f) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice.
Appears in 1 contract
Samples: Receivables Financing Agreement (PRA Health Sciences, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Lender and the Borrower Borrowers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 2.17(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Lender will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall Lender will promptly notify the Borrower and the Lenders Borrowers of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. Xxxxxx will promptly notify the Borrowers of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 2.17(d). 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 SectionSection 2.17, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.17.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent Lender in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Lender 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 unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Lender 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.
(ve) Upon the Borrower’s Borrowers’ receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Borrowers may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall Borrowers will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall will not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Credit Agreement (Alico, Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition EventEvent with respect to a Benchmark, the Administrative Agent, the Required Lenders Agent and the Borrower Borrowers may amend this Agreement to replace the then-current such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement”, without any 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”, at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrowers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentLenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 2.22(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Borrowers and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrowers of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 2.22(d). 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 SectionSection 2.22, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.22.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), ) (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate or the Eurocurrency Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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 unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the Borrower’s Borrowers’ receipt of notice of the commencement of a Benchmark Unavailability PeriodPeriod with respect to a given Benchmark, (i) the Borrower Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued in such Benchmark during any Benchmark Unavailability Period and, failing that, the Borrower shall Borrowers will be deemed to have (x) converted any such request for Borrowings denominated in Dollars into a request for a Borrowing of or conversion to Base Rate LoansLoans and (y) converted any such request for a Borrowings denominated in any other Agreed Currency into a request for a Borrowing of or conversion to Base Rate Loans denominated in Dollars (in an amount equal to the Equivalent Amount in Dollars of such other Agreed Currency) and (ii) (A) any outstanding affected SOFR Loans denominated in Dollars will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period therefor and (B) any outstanding affected Eurocurrency Loans and any SONXX Xxans, at the Borrowers’ election, shall either (1) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Equivalent Amount in Dollars of such other Agreed Currency) at the end of the applicable Interest Period therefor with respect to Eurocurrency Loans and immediately with respect to SONXX Xxans or (2) be prepaid in full at the end of the applicable Interest Period therefor with respect to Eurocurrency Loans and immediately with respect to SONXX Xxans; provided that if no election is made under this clause (B) by the Borrowers (i) in respect of SONXX Xxrrowings, by the date that is three Business Days after receipt by a Borrower of such notice and (ii) in respect of Eurocurrency Borrowings, by the earlier of (x) the date that is three Business Days after receipt by a Borrower of such notice or (y) the last day of the current Interest Period, the Borrowers shall be deemed to have elected clause (1) above. During a 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 Term SOFR or such tenor for such Benchmarkof Term SOFR, as applicable, shall will not be used in any determination of the Base Rate.
(f) In connection with the use, administration of, or conventions associated with, Term SOFR or SONXX, xhe Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will reasonably promptly notify the Borrowers and the Lenders of the effectiveness of any such Conforming Changes.
Appears in 1 contract
Samples: Credit Agreement (WestRock Co)
Benchmark Replacement Setting. On March 5, 2021 the Financial Conduct Authority (i) “FCA”), the regulatory supervisor of USD LIBOR’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-month USD LIBOR tenor settings. Notwithstanding anything to the contrary contained herein or in any other Loan Related Document:
(a) On the earlier of (i) the date that all Available Tenors of the Eurodollar Funding Rate have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, upon if the then-current Benchmark is the Eurodollar Funding Rate, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Related Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Related Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(b) Upon the occurrence of (x) a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to Benchmark Replacement will replace the then-current Benchmark with a for all purposes hereunder and under any Related Document in respect of any Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date that notice of such Benchmark Replacement is provided to the Lenders comprising the Required Lenders have delivered to Investors without any amendment to, or further action or consent of any other party to, this Agreement or any other Related Document so long as the Administrative Agent has not received, by such time, written notice that of objection to such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to from the applicable Benchmark Transition Start Date.
Required Investor Groups or (iiy) In connection with the use, administration, adoption or implementation of a Benchmark Replacementan Other Rate Opt-in Election, the Administrative Agent Benchmark Replacement will replace the Benchmark on the Early Opt-in Effective Date, if the then-current Benchmark is USD LIBOR for all purposes hereunder and the Required Lenders shall have the right, under any Loan Document in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in respect of any other Loan Document, any amendments implementing setting of such Conforming Changes shall become effective Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Master Issuer may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Master Issuer’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Master Issuer will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Advances. During the period referenced in the foregoing sentence, the component of the Base Rate based upon the Benchmark will not be used in any determination of the Base Rate.
(c) Notwithstanding anything to the contrary herein or in any other Related Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Term SOFR Transition Event Effective Date have occurred prior to the reference time in respect of any setting of the then-current Benchmark, then Term SOFR plus the Term SOFR Adjustment will replace the then-current Benchmark for all purposes hereunder or under any Related 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 Related Document; provided that, this clause (d) shall not be effective unless the Administrative Agent has delivered to the Investors and the Master Issuer a Term SOFR Notice. Notwithstanding anything contained herein to the contrary, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion. For the avoidance of doubt, any applicable provisions set forth in this Section 3.10(d) shall apply with respect to any Term SOFR transition pursuant to this paragraph (d) as if such forward-looking term rate was initially determined in accordance herewith including, without limitation, the provisions set forth in Section 3.10(d) and Section 3.10(h).
(d) In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Related 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.
(e) The Master Issuer and each Guarantor, in its respective capacity as the Master Issuer or a Guarantor, or other similar capacity in which such party acts as direct or indirect, or primary or secondary, obligor, accommodation party or guarantor or grants liens or security interests in or to its properties hereunder or under any other Related Document, hereby acknowledges and agrees to be bound by the provisions of this Section 3.10 (including, without limitation, the implementation from time to time of any Benchmark Replacement and any Benchmark Replacement Conforming Changes in accordance herewith) and, in furtherance of the forgoing (and without, in any way express or implied, invalidating, impairing or otherwise negatively affecting any obligations heretofore provided) hereby acknowledges and agrees that in connection with and after giving effect to any Benchmark Cessation Changes: (i) its obligations shall not in any way be novated, discharged or otherwise impaired, and shall continue, be ratified and be affirmed and shall remain in full force in effect, (ii) its grant of a guarantee, pledge, assignment or any other accommodation, lien or security interests in or to its properties relating to this Agreement or any other Related Document shall continue, be ratified and be affirmed, and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired and (iii) the Related Documents and its obligations thereunder (contingent or otherwise) shall continue, be ratified and be affirmed and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired. In addition, each party to this Agreement hereby fully waives any requirements to notify such party of any Benchmark Cessation Changes (except as expressly provided in this Section titled “Benchmark Replacement Setting”). In furtherance of the foregoing, each Guarantor hereby (i) appoints the Master Issuer (and the Master Issuer hereby accepts such appointment) as its agent, attorney-in-fact and representative for purposes of the delivery of any and all documents, instruments, agreements and other materials required to be delivered by any such party and for all other administrative purposes incidental to any of the foregoing provisions of this Section 3.10(e) and (ii) hereby authorizes the Master Issuer to take such actions, execute, acknowledge, and deliver, or cause to be executed, acknowledged and delivered, such further agreements, documents or instruments that are reasonably necessary or desirable to carry out the intent and purpose of this Section 3.10 on its behalf. From time to time, the Master Issuer (both in its individual capacity and in its capacity as agent, agent, attorney-in-fact and representative of each other party pursuant to the immediately preceding sentence) and the parties to this Agreement shall execute and deliver, or cause to be executed and delivered, such instruments, agreements, certificates or documents, and take all such actions, as the Master Issuer may reasonably request for the purposes implementing or effectuating the provisions of this Section 3.10, or of renewing, continuing, reaffirming or ratifying the rights of the Master Issuer and the other Investors with respect to the Obligations or the Collateral.
(f) The Administrative Agent shall will promptly notify the Borrower Master Issuer and the Lenders Investors of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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 LendersInvestors) pursuant to this SectionSection 3.10, 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 selectionaction, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Documenthereto, except, in each case, as expressly required pursuant to this SectionSection 3.10.
(ivg) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference or the Eurodollar Funding Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
(h) Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration of, submission of, calculation of, or any other matter related to the London interbank offered rate or other rates in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest PeriodEurodollar Funding Rate” (or any similar alternative or analogous definitionsuccessor rate thereto, or replacement rate thereof (including, without limitation, (i) for all Benchmark settings at any such alternative, successor or after such time replacement rate implemented pursuant to reinstate such previously removed tenor.
(v) Upon this Section 3.10(h), whether upon the Borrower’s receipt of notice of the commencement occurrence of a Benchmark Unavailability PeriodTransition Event, an Other Rate Opt-in Election or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 3.10(d), including without limitation, (A) whether the composition or characteristics of any such alternative, successor or replacement reference rate for any currency will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Borrower may revoke applicable Eurodollar Funding Rate for Advances denominated in such currency as did the London interbank offered rate prior to its discontinuance or unavailability, and (B) the impact or effect of such alternative, successor or replacement reference rate or Benchmark Replacement Conforming Changes on any request for a Borrowing ofother financial products or agreements in effect or offered by or to any Master Issuer, conversion to any Guarantor or continuation any Investor or any of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Ratetheir respective Affiliates.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of if a Benchmark Transition Event, Event and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, reference time (if any) on the Required Lenders and the Borrower may amend this Agreement to replace related Benchmark Determination Date in respect of any setting of the then-current Benchmark, then the Benchmark with a Replacement (to the extent agreed to by the Agent and the Seller) will replace such Benchmark Replacement. Any such amendment with for all purposes hereunder and under any Transaction Document in respect to a of any Benchmark Transition Event shall become setting effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date that notice of such Benchmark Replacement is provided pursuant to clause (c) below (without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document), so long as the Lenders comprising Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DatePurchasers.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Seller, the Servicer and the Lenders each Company of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) administration, adoption or implementation of a Benchmark Replacement. The Agent will notify the Seller of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 3.6(d) below and (y) 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 Purchaser (or group of LendersPurchasers) pursuant to this SectionSection 3.6, 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 making any selection, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Transaction Document, except, in each case, as expressly required pursuant to this SectionSection 3.6.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate or is based on a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) 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 representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Accrual 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 the foregoing clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may (in consultation with or at the Required Lenders and request of the BorrowerSeller, shall) may modify the definition of “Interest Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.. FOURTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
(ve) Upon the BorrowerSeller’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Seller may revoke any request for a Borrowing the purchase of, conversion to or continuation of SOFR Loans a Purchaser Interest for which the Discount Rate would have been calculated by reference to be made, converted or continued the then-current Benchmark during any Benchmark Unavailability Period andfor such Benchmark, and failing thatsuch revocation, the Borrower shall Seller will be deemed to have converted any such request into a request for a Borrowing that the Discount Rate applicable to the purchase of such Purchaser Interest or the conversion of such Purchaser Interest be calculated by reference to the Alternative Base Rate LoansRate. During a 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 Alternative Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall will not be used in any determination of the Alternative Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of if a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace Reference Time in respect of any setting of the then-current Benchmark with Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement. Any ” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment with respect to to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Transition Event shall become effective 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 Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. New York City time on the fifth (5th) Business Day after the date that 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 Transaction Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateMajority Lenders.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall 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, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 4.05(d) below and (yv) 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 SectionSection 4.05, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Transaction Document, except, in each case, as expressly required pursuant to this SectionSection 4.05.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Transaction 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 Reference RateSOFR, LMIR or Adjusted LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing ofLoan bearing interest based on LMIR or Adjusted LIBOR, conversion to or continuation of SOFR Loans bearing interest based on LMIR or Adjusted LIBOR to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing Loan of or conversion to Loans bearing interest under the Base Rate LoansRate. During a 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, shall will not be used in any determination of the Base Rate.
(f) Notwithstanding anything to the contrary herein or in any other Transaction 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 (i) the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting (the “Secondary Term SOFR Conversion Date”) and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document; and (ii) Loans outstanding on the Secondary Term SOFR Conversion Date bearing interest based on the then-current Benchmark shall be deemed to have been converted to Loans bearing interest at the Benchmark Replacement with a tenor approximately the same length as the interest payment period of the then-current Benchmark; provided that, this Section 4.05(f) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice.
(g) This Section 4.05 provides a mechanism for determining an alternative rate of interest in the event that the London interbank offered rate is no longer available or in certain other circumstances. The Administrative Agent does not warrant or accept any responsibility for and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of Adjusted LIBOR, LMIR or with respect to any alternative or successor rate thereto, or replacement rate therefor.
(h) The following defined terms used in this Section 4.05 have the meanings set forth below:
Appears in 1 contract
Samples: Receivables Financing Agreement (Evoqua Water Technologies Corp.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan DocumentTransaction Agreement, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Buyer and the Borrower Seller may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after Bxxxx has posted such proposed amendment to all affected Buyer Funding Parties and the Lenders Seller so long as Buyer has not received, by such time, written notice of objection to such amendment from Buyer Funding Parties comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentBuyer Funding Parties. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 4.8(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Buyer will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan DocumentTransaction Agreement, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan DocumentTransaction Agreement. Bxxxx agrees to provide, promptly following the effectiveness thereof, a copy of any such amendments to Seller and each Buyer Funding Party.
(iiic) The Administrative Agent shall Buyer will promptly notify the Borrower and the Lenders Seller of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming ChangesChanges in connection with the use, and administration, adoption or implementation of a Benchmark Replacement, (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 4.8(d) below and (yv) 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) Buyer pursuant to this SectionSection 4.8, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan DocumentTransaction Agreement, except, in each case, as expressly required pursuant to this SectionSection 4.8.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan DocumentTransaction Agreement, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent Buyer in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Buyer may modify this Agreement (including the definition of “Interest Transaction Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Buyer may modify this Agreement (including the definition of “Interest Transaction Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(ve) Upon the BorrowerSxxxxx’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Seller may revoke any request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period pending Transaction Notice and, failing that, the Borrower shall Seller will be deemed to have converted any such request Transaction Notice into a request for a Borrowing Transaction with respect to which the Price Differential is calculated based on the Alternate Base Rate.
(f) Seller hereby acknowledges and agrees to be bound by the provisions of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenorthis Section 4.8 (including, without limitation, the component implementation from time to time of any Benchmark Replacement and any Conforming Changes in accordance herewith) and, in furtherance of the Base Rate based upon the then-current Benchmark forgoing (and without, in any way express or such tenor for such Benchmarkimplied, as applicableinvalidating, impairing or otherwise negatively affecting any obligations heretofore provided) hereby acknowledges and agrees that in connection with and after giving effect to any Conforming Changes: (i) its obligations shall not in any way be novated, discharged or otherwise impaired, and shall continue, be ratified and be affirmed and shall remain in full force in effect, (ii) its grant of a guarantee, pledge, assignment or any other accommodation, lien or security interests in or to its properties relating to this Agreement or any other Transaction Agreement shall continue, be ratified and be affirmed, and shall remain in full force and effect and shall not be used novated, discharged or otherwise impaired and (iii) the Transaction Agreements and its obligations thereunder (contingent or otherwise) shall continue, be ratified and be affirmed and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired. From time to time, the Seller shall execute and deliver, or cause to be executed and delivered, such instruments, agreements, certificates or documents, and take all such actions, as Buyer may reasonably request for the purposes implementing or effectuating the provisions of this Section 4.8, or of renewing, continuing, reaffirming or ratifying the rights of Buyer.
(g) In connection with the use, administration of, or conventions associated with, Term SOFR, Buyer will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any determination other Transaction Agreement, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Agreement. Buyer will reasonably promptly notify the Seller of the Base Rateeffectiveness of any such Conforming Changes.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iva) Notwithstanding anything to the contrary herein or in any other Loan DocumentDocument (including Section 2.14), upon the occurrence of a Benchmark Transition Event, Agent may at any time thereafter amend this Agreement to replace the then current Benchmark with an alternate benchmark rate selected by Agent, together with any spread or other adjustment to be applied to such alternate benchmark rate (including any mathematical or other adjustments to the benchmark), giving due consideration to any evolving or then existing convention for determining a rate of interest as a replacement to such current Benchmark for U.S. dollar denominated syndicated Agent-originated loans in connection with the implementation of a U.S. market (the “Benchmark Replacement)”) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to this Agreement or any other Loan Document, or further action or consent of the Borrowers, so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Lenders comprising the Required Lenders or the Borrower; provided that upon Agent’s receipt of any such notice of objection hereunder, (i) if all Loans that bear interest by reference to such Benchmark shall be immediately converted to Base Rate Loans and (ii) the then-current Borrower shall not be entitled to elect such Benchmark (whether at the time when the applicable Loan is made, or upon conversion or the continuation of a term rate (including the Term SOFR Reference RateLoan) and either such Benchmark shall be unavailable until such time as a Benchmark Replacement has occurred, whether pursuant to this Section 2.18(a) or mutual consent pursuant to Section 11.2. During the period referenced in the foregoing sentence, the component of Base Rate based upon the Benchmark will not be used in any determination of Base Rate. If the Benchmark Replacement as so determined would be less than 0.35%, the Benchmark Replacement will be deemed to be 0.35% for the purposes of this Agreement. Any such amendment will become effective at 5:00 p.m. Pacific Time on the effective date specified in such amendment (such date, the “Benchmark Replacement Date”).
(b) As used in this Section 2.18: (i) “Benchmark” means, initially, with respect to any SOFR Loan, the SOFR-Based Rate upon which such SOFR Loan is based; provided that if a Benchmark Replacement Date has occurred with respect to any such SOFR-Based Rate or any then current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to this Section 2.18; and (ii) “Benchmark Transition Event” means the occurrence of one or more of the following events with respect to a then current Benchmark: (A) any tenor for a public statement or publication of information by or on behalf of the administrator of the Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is not displayed on a screen no successor administrator that will continue to provide such Benchmark (or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or component thereof); (B) a public statement or publication of information by a governmental authority having jurisdiction over Agent, the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof); (C) a public statement or publication of information by a governmental authority having jurisdiction over Agent or the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it or as of a specified future date will no longer be, representative or is not in compliance or aligned, or as a specified future date -47- will not be representative for a Benchmark (including a Benchmark Replacement)in compliance or aligned, then the Administrative Agent (in consultation with the Required Lenders International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; (D) the circumstances set forth in Section 2.14 have arisen and the Borrower) 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.
(v) 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 SOFR Loans circumstances are unlikely to be made, converted temporary; or continued during any Benchmark Unavailability Period and, failing that, (E) Agent has determined that U.S. dollar denominated syndicated loans in the Borrower shall be deemed to have converted any such request into a request for a Borrowing of U.S. market are being executed or conversion to Base Rate Loans. During a 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, amended (as applicable, shall not be used in any determination of ) to incorporate or adopt a new benchmark interest rate to replace the Base Ratethen current Benchmark.
Appears in 1 contract
Samples: Credit Agreement (Ares Commercial Real Estate Corp)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower Co-Issuers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that the Lenders comprising the Required Lenders have delivered to fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Investors and the Co-Issuers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from the Investor Groups holding more than (i) if no single Investor Group holds more than 50% of the Commitments, 50% of the Commitments or (ii) if a single Investor Group holds more than 50% of the Commitments, two thirds of the Commitments (provided that such Required Lenders accept such amendmentthe Commitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 3.04(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 3.04(d). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender Investor (or group of LendersInvestors) pursuant to this SectionSection 3.04, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Transaction Document, except, in each case, as expressly required pursuant to this SectionSection 3.04.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Transaction 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 Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(ve) Upon the Borrower’s Co-Issuers’ receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Co-Issuers may revoke any pending request for a Borrowing borrowing of, conversion to or continuation of any SOFR Loans Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall Co-Issuers will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate LoansAdvances. During a 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, shall will not be used in any determination of the Base Rate.
(f) In connection with the use, administration of, or conventions associated with, Term SOFR and the Term SOFR Reference Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Document. The Administrative Agent will reasonably promptly notify the Co-Issuers and the Investors of the effectiveness of any such Conforming Changes.
(g) For purposes of the Series 2024-1 Class A-1 Notes:
Appears in 1 contract
Samples: Note Purchase Agreement (Driven Brands Holdings Inc.)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Credit Document, upon the occurrence of a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, the Administrative Agent, the Required Lenders Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateLenders.
(ii) In connection with the use, administration, adoption administration of Term SOFR or the implementation and administration of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time (with the consent of the Borrower (not to be unreasonably withheld or delayed)) and, notwithstanding anything to the contrary contained herein or in any other Loan Credit Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan DocumentAgreement.
(iii) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent orin consultation with, if applicableor subject to consent rights of, any Lender (or group of Lenders) pursuant to the Borrower as expressly set forth in this SectionSection 2.10(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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Credit Document, except, in each case, as expressly required pursuant to this SectionSection 2.10(d).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark ReplacementSOFR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (in consultation with including Benchmark Replacement) settings and (ii) the Required Lenders and the Borrower) Administrative Agent may modify the definition of “Interest Period” (or reinstate any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenortenor for Benchmark (including Benchmark Replacement) settings.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Borrower 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 Borrower shall will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate LoansABR Loans and (ii) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to ABR Loans at the end of the applicable Interest Period. During a 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 ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall will not be used in any determination of the Base RateABR.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan DocumentTransaction Agreement, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Buyer and the Borrower Seller may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after Xxxxx has posted such proposed amendment to all affected Buyer Funding Parties and the Lenders Seller so long as Buyer has not received, by such time, written notice of objection to such amendment from Buyer Funding Parties comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentBuyer Funding Parties. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 4.8(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Buyer will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan DocumentTransaction Agreement, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan DocumentTransaction Agreement. Xxxxx agrees to provide, promptly following the effectiveness thereof, a copy of any such amendments to Seller and each Buyer Funding Party.
(iiic) The Administrative Agent shall Buyer will promptly notify the Borrower and the Lenders Seller of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming ChangesChanges in connection with the use, and administration, adoption or implementation of a Benchmark Replacement, (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 4.8(d) below and (yv) 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) Buyer pursuant to this SectionSection 4.8, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan DocumentTransaction Agreement, except, in each case, as expressly required pursuant to this SectionSection 4.8.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan DocumentTransaction Agreement, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent Buyer in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Buyer may modify this Agreement (including the definition of “Interest Transaction Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Buyer may modify this Agreement (including the definition of “Interest Transaction Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(ve) Upon the BorrowerXxxxxx’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Seller may revoke any request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period pending Transaction Notice and, failing that, the Borrower shall Seller will be deemed to have converted any such request Transaction Notice into a request for a Borrowing Transaction with respect to which the Price Differential is calculated based on the Alternate Base Rate.
(f) Seller hereby acknowledges and agrees to be bound by the provisions of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenorthis Section 4.8 (including, without limitation, the component implementation from time to time of any Benchmark Replacement and any Conforming Changes in accordance herewith) and, in furtherance of the Base Rate based upon the then-current Benchmark forgoing (and without, in any way express or such tenor for such Benchmarkimplied, as applicableinvalidating, impairing or otherwise negatively affecting any obligations heretofore provided) hereby acknowledges and agrees that in connection with and after giving effect to any Conforming Changes: (i) its obligations shall not in any way be novated, discharged or otherwise impaired, and shall continue, be ratified and be affirmed and shall remain in full force in effect, (ii) its grant of a guarantee, pledge, assignment or any other accommodation, lien or security interests in or to its properties relating to this Agreement or any other Transaction Agreement shall continue, be ratified and be affirmed, and shall remain in full force and effect and shall not be used novated, discharged or otherwise impaired and (iii) the Transaction Agreements and its obligations thereunder (contingent or otherwise) shall continue, be ratified and be affirmed and shall remain in full force and effect and shall not be novated, discharged or otherwise impaired. From time to time, the Seller shall execute and deliver, or cause to be executed and delivered, such instruments, agreements, certificates or documents, and take all such actions, as Buyer may reasonably request for the purposes implementing or effectuating the provisions of this Section 4.8, or of renewing, continuing, reaffirming or ratifying the rights of Buyer.
(g) In connection with the use, administration of, or conventions associated with, Term SOFR, Buyer will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any determination other Transaction Agreement, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Agreement. Buyer will reasonably promptly notify the Seller of the Base Rateeffectiveness of any such Conforming Changes.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. on the date that fifth Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentLenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 3.03(b)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the rightright to make Conforming Changes, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (iiA) the implementation of any Benchmark Replacement, Replacement and (iiiB) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark ReplacementSection 3.03(b), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Five Year Credit Agreement (Principal Financial Group Inc)
Benchmark Replacement Setting. Notwithstanding anything herein to the contrary, in the event that (i) Notwithstanding anything the Index is permanently or indefinitely unavailable or unascertainable, or ceases to be published by the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition EventSOFR Administrator, (ii) the implementation Index is determined to be no longer representative by the regulatory supervisor of any Benchmark Replacementthe SOFR Administrator, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator SOFR Administrator has determined that the Index may no longer be used, or (iv) a new index rate has become a widely-recognized replacement benchmark rate for the Index in newly originated or amended loans denominated in Dollars in the U.S. market, then all references to the interest rate herein will instead be to a replacement rate determined by Lender in its sole judgment, including any adjustment to the replacement rate to reflect a different credit spread, term or other mathematical adjustment deemed necessary by the Lender in its sole judgment. Lender will provide reasonable notice to Borrower of such Benchmark has provided a public statement replacement rate, which will be effective on the date set forth in such notice. Lender may also from time to time, in Lxxxxx's sole discretion, make any technical, administrative or publication operational changes (including changes to the timing and frequency of information announcing determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length or applicability of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) ("Conforming Changes") that Lxxxxx decides may be appropriate to reflect the adoption and implementation of such replacement rate and to permit the administration of the loans by Lender an administratively and operationally practicable manner. If there is any tenor for ambiguity as to the date of occurrence of any such Benchmark is event, Lxxxxx's judgment will be dispositive. Lender does not warrant or will accept responsibility for, and shall not be representativehave any liability with respect to (a) the administration of, then the Administrative Agent (submission of, calculation of or any other matter related to any replacement rate, any component definition thereof or rates referenced in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (thereof or any alternative, comparable or successor rate thereto, including whether the composition or characteristics of any such alternative, comparable or successor rate will be similar to, or analogous definition) for produce the same value or economic equivalence of, or have the same volume or liquidity as the immediately preceding interest index rate or any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) other interest rate index, or (Bb) is notthe effect, implementation or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition composition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenorConforming Changes.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition EventEvent with respect to any Benchmark, the Administrative Agent, the Required Lenders Agent and the Borrower Company may amend this Agreement to replace the then-current such Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Company so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentLenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 2.22(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrowerconsent of the Company, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Company and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Company of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 2.22(d) below and (y) 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 SectionSection 2.22, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.22.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate, EURIBOR or CDOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the BorrowerCompany’s receipt of notice of the commencement of a Benchmark Unavailability PeriodPeriod with respect to a given Benchmark, (i) the applicable Borrower may revoke any pending request for a Term SOFR Borrowing or a Eurocurrency Borrowing of, conversion to or continuation of Term SOFR Loans or Eurocurrency Loans, or a SXXXX Xxxx Borrowing of, conversion to or continuation of SXXXX Rate Loans, in each case, to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable currency and, failing that, (A) in the case of any request for any affected Term SOFR Borrowing, if applicable, the applicable Borrower shall will be deemed to have converted any such request into a request for a an ABR Borrowing of or conversion to Base ABR Loans in the amount specified therein and (B) in the case of any request for any affected SXXXX Rate Borrowing or Eurocurrency Borrowing, if applicable, then such request shall be ineffective and (ii)(A) any outstanding affected Term SOFR Loans, if applicable, will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period and (B) any outstanding affected SXXXX Rate Loans or Eurocurrency Rate Loans, at the applicable Borrower’s election, shall either (I) be converted into ABR Loans denominated in US Dollars (in an amount equal to the US Dollar Equivalent of such currency) immediately or, in the case of Eurocurrency Loans, at the end of the applicable Interest Period or (II) be prepaid in full immediately or, in the case of Eurocurrency Loans, at the end of the applicable Interest Period; provided that, with respect to any SXXXX Rate Loan, if no election is made by the applicable Borrower by the date that is three Business Days after receipt by the Company of such notice, the applicable Borrower shall be deemed to have elected clause (I) above; provided, further, that, with respect to any Eurocurrency Loan, if no election is made by the applicable Borrower by the earlier of (x) the date that is three Business Days after receipt by the Company of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Loan, the applicable Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.14. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for the any then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, shall will not be used in any determination of the Alternate Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Related Document, upon the occurrence of if a Benchmark Transition Event, the Administrative Agent, the Required Lenders Event and the Borrower may amend this Agreement its related Benchmark Replacement Date have occurred with respect to replace the then-current Benchmark with Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement. Any ” for such Benchmark Replacement Date, such Benchmark Replacement will replace such then-current Benchmark for all purposes hereunder and under any Related Document without any amendment with respect to to, or further action or consent of any other party to, this Agreement or any other Related Document and (y) if a Benchmark Transition Event shall become effective Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such then-current Benchmark for all purposes hereunder and under any Related Document at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date that notice of such Benchmark Replacement is provided to the Lenders Investors without any amendment to, or further action or consent of any other party to, this Agreement or any other Related Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Investor Groups comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateInvestor Groups.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Related Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Related Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 3.04(d). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender Investor (or group of LendersInvestors) pursuant to this SectionSection 3.04, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Related Document, except, in each case, as expressly required pursuant to this SectionSection 3.04.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Related 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 Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “SOFR Interest Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(ve) Upon the Borrower’s Co-Issuers’ receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Co-Issuers may revoke any pending request for a Borrowing borrowing of, conversion to or continuation of any SOFR Loans Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall Co-Issuers will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate LoansAdvances. During a 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, shall will not be used in any determination of the Base Rate.
(f) In connection with the use, administration of, or conventions associated with, Term SOFR and the Term SOFR Reference Rate, the Administrative Agent will have the right to make Conforming Changes from time to time (in consultation with the Co-Issuers) and, notwithstanding anything to the contrary herein or in any other Related Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Related Document. The Administrative Agent will reasonably promptly notify the Co-Issuers and the Investors of the effectiveness of any such Conforming Changes.
Appears in 1 contract
Samples: Class a 1 Note Purchase Agreement (Dominos Pizza Inc)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan DocumentOn March 5, upon the occurrence of a Benchmark Transition Event2021, the Administrative AgentICE Benchmark Administration, the Required Lenders administrator of LIBOR (the “IBA”) and the Borrower may amend this Agreement to replace U.K. Financial Conduct Authority, the thenregulatory supervisor for the IBA, announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-current Benchmark with week, 1-month, 2-month, 3-month, 6-month and 12-month USD LIBOR tenor settings (collectively, the “Cessation Announcements”). The parties hereto acknowledge that, as a Benchmark Replacement. Any such amendment with respect to result of the Cessation Announcements, a Benchmark Transition Event shall become effective occurred on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the useMarch 5, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, including any determination 2021 with respect to a tenor, rate or adjustment or USD LIBOR under clauses (1) and (2) of the occurrence or non-occurrence definition of an eventBenchmark Transition Event below; provided however, circumstance or date and any decision to take or refrain from taking any action or any selection, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, no related Benchmark Replacement Date occurred as expressly required pursuant to this Section.
of such date. (ivc) (bi) Notwithstanding anything to the contrary herein or in any other Loan Transaction Document (and any Hedging Agreement shall be deemed not to be a “Transaction Document” for purposes of this Section), at any time (including in connection with the implementation of if a Benchmark Replacement)Transition Event, (i) if an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is a term rate determined in accordance with clause (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower1) or (B2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest PeriodBenchmark Replacement” (for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction 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 similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor other Transaction Document and (iiy) if a tenor that was removed pursuant to Benchmark Replacement is determined in accordance with clause (i3) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify of the definition of “Interest PeriodBenchmark Replacement” (or any similar or analogous definition) for such Benchmark Replacement Date, suchthe Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark settings setting at or after such time to reinstate such previously removed tenor.
5:00 p.m. (vNew York City time) Upon on the Borrower’s receipt of fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the commencement Lenders without any amendment to, or further action or consent of a any other party to, this Agreement or any other Transaction Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Unavailability Period, Replacement from Group AgentsLenders comprising the Borrower may revoke any request for a Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base RateMajority Group Agents.
Appears in 1 contract
Samples: Receivables Financing Agreement (DCP Midstream, LP)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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, 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, shall be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section.
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with ifupon the implementation occurrence of a Benchmark Replacement)Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of any then-current Benchmark, then (ix) if a Benchmark Replacement is determined in accordance with clause (a)(i) or (a)(ii) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date and such Benchmark, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in with respect of suchto any 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 Loan Document and (y) if a Benchmark Replacement is determined in accordance, the Administrative Agent and the Borrowers may amend this Credit Agreement to replace such Benchmark with clause (a)(iii) or clause (c) of the definition of “a Benchmark Replacement” for. Any such Benchmark Replacement Date and such Benchmark, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document inamendment with respect of anyto a Benchmark settingTransition Event will become effective at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is providedAdministrative Agent has posted such proposed amendment to xxxxxx Lenders without any amendment to, or further action or consent of any other party to, this Credit Agreement or any other Loan Documentand the Borrowers so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacementamendment from Lenders comprising the Required Lenders.
(ii) Notwithstanding anything to the contrary herein or in any other Loan Document, solely with respect to any Obligations, interest, fees, commissions or other amounts denominated in Dollars or calculated with respect thereto, 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 applicable then-current Benchmark, then the applicable Benchmark Replacement will replace such 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 81 any other party to, this Credit Agreement or any other Loan Document; provided that this clause (ii) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrowers a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may elect or not elect to do so in its sole discretion.
(iii) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, if a Term XXXXX Transition Date has occurred prior to the Reference Time in respect of any setting of the then-current Benchmark is a term rate consisting of Daily XXXXX, then Term XXXXX will replace Daily XXXXX for all purposes hereunder or under any Loan Document, without any amendment to, or further action or consent of any other party to, this Credit Agreement or any other Loan Document; provided that this clause (including the Term SOFR Reference Rateiii) and either (A) any tenor for such Benchmark is shall not displayed on a screen or other information service that publishes such rate from time to time as selected by be effective unless the Administrative Agent in its reasonable discretion (in consultation with has delivered to the Required Lenders and the Borrower) or (B) Borrowers a Term XXXXX Notice with respect to a Term XXXXX Transition Event. For 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 not or will not be representativedoubt, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used required to deliver a Term XXXXX Notice after a Term XXXXX Transition Event and may elect or not elect to do so in any determination of the Base Rateits sole discretion.
Appears in 1 contract
Samples: Revolving Credit Agreement (Goldman Sachs Private Middle Market Credit II LLC)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of if a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace Reference Time in respect of any setting of the then-current Benchmark with Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement. Any ” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment with respect to to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Transition Event shall become effective 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 Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. New York City time on the fifth (5th) Business Day after the date that 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 Transaction Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateMajority Lenders.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall 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, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 5.06(d) below and (yv) 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 SectionSection 5.06, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Transaction Document, except, in each case, as expressly required pursuant to this SectionSection 5.06.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Transaction 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 Reference RateSOFR, LMIR or Adjusted LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing ofLoan bearing interest based on LMIR or Adjusted LIBOR, conversion to or continuation of SOFR Loans bearing interest based on LMIR or Adjusted LIBOR to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing Loan of or conversion to Loans bearing interest under the Base Rate LoansRate. During a 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, shall will not be used in any determination of the Base Rate.
(f) Notwithstanding anything to the contrary herein or in any other Transaction 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 (i) the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting (the “Secondary Term SOFR Conversion Date”) and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document; and (ii) Loans outstanding on the Secondary Term SOFR Conversion Date bearing interest based on the then-current Benchmark shall be deemed to have been converted to Loans bearing interest at the Benchmark Replacement with a tenor approximately the same length as the interest payment period of the then-current Benchmark; provided that, this Section 5.06(f) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice.
(g) This Section 5.06 provides a mechanism for determining an alternative rate of interest in the event that the London interbank offered rate is no longer available or in certain other circumstances. The Administrative Agent does not warrant or accept any responsibility for and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of Adjusted LIBOR, LMIR or with respect to any alternative or successor rate thereto, or replacement rate therefor.
(h) The following defined terms used in this Section 5.06 have the meanings set forth below:
Appears in 1 contract
Samples: Receivables Financing Agreement (EnLink Midstream, LLC)
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Credit Document:
(i) On March 5, upon 2021 the occurrence of a Benchmark Transition EventFinancial Conduct Authority (“FCA”), the Administrative Agentregulatory supervisor of USD LIBOR’s administrator (“IBA”), announced in a public statement the Required Lenders future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-month USD LIBOR tenor settings. On the Borrower may amend this Agreement earlier of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to replace be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on is USD LIBOR, the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable will replace such Benchmark Transition Start Date.
(ii) In connection with the use, administration, adoption or implementation for all purposes hereunder and under any Loan Document in respect of a any setting of such Benchmark Replacement, the Administrative Agent on such day and the Required Lenders shall have the right, in consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall become effective all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(i) (ii) Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each Class. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Base Rate Loans. During the period referenced in the foregoing sentence, the component of ABRthe Base Rate based upon the Benchmark will not be used in any determination of ABRthe Base Rate.
(ii) (iii) In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iv) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) 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 SectionSection 2.18(b), 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Documenthereto, except, in each case, as expressly required pursuant to this SectionSection 2.18(b).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower Co-Issuers may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Lenders Administrative Agent has posted such proposed amendment to all affected Investors and the Co-Issuers so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Investors comprising the Required Lenders have delivered to Investor Groups (provided that the Administrative Agent written notice that such Required Lenders accept such amendmentCommitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 3.11(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Transaction Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Transaction Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Co-Issuers and the Lenders Investors of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Co-Issuers of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 3.11(d). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender Investor (or group of LendersInvestors) pursuant to this SectionSection 3.11, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Transaction Document, except, in each case, as expressly required pursuant to this SectionSection 3.11.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Transaction 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 Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement)representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) 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 SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a 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, shall not be used in any determination of the Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Related Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent, the Required Lenders Agent and the Borrower Master Issuer may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Lenders Administrative Agent has posted such proposed amendment to all affected Investors and the Master Issuer so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Investors comprising the Required Lenders have delivered to Investor Groups (provided that the Administrative Agent written notice that such Required Lenders accept such amendmentCommitment of any Defaulting Investor shall be disregarded in the determination of whether any threshold percentage of Commitments has been met). No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 3.10(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Related Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Related Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Master Issuer and the Lenders Investors of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) (x) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Master Issuer of the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement or conclusion of any Benchmark Unavailability PeriodSection 3.10(d). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender Investor (or group of LendersInvestors) pursuant to this SectionSection 3.10, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Related Document, except, in each case, as expressly required pursuant to this SectionSection 3.10.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Related 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 Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representativerepresentative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Eurodollar Interest Accrual Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable unavailable, non-representative, non-compliant or non-representative aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Eurodollar Interest Accrual Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(ve) Upon the BorrowerMaster Issuer’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower Master Issuer may revoke any pending request for a Borrowing borrowing of, conversion to or continuation of SOFR Loans any Eurodollar Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall Master Issuer will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate LoansAdvances. During a 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, shall will not be used in any determination of the Base Rate.
Appears in 1 contract
Samples: Class a 1 Note Purchase Agreement (Jack in the Box Inc)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan DocumentDocuments, upon the occurrence of if a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace Reference Time in respect of any setting of the then-current Benchmark with Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) or (b) of the definition of “Benchmark Replacement. Any ” 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 with respect to to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Transition Event shall become effective Replacement is determined in accordance with clause (c) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth Business Day after the date that notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateLenders.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition EventReplacement Date and the related Benchmark Replacement, (ii) the implementation effectiveness of any Benchmark ReplacementReplacement Conforming Changes, (iii) the effectiveness of any Conforming Changes, and (iv) (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivd) below and (yiv) the commencement or conclusion of any Benchmark Unavailability Period. For the avoidance of doubt, any notice required to be delivered by the Agent as set forth in this Section 2.10 be provided, at the option of the 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 Benchmark 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 SectionSection 2.10, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.10.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rateor USD LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be no longer representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of SOFR Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate ABR Loans. During a 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 ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall will not be used in any determination of ABR.
(f) The Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to (i) the Base administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “Adjusted LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation any Benchmark Replacement implemented hereunder), (ii) the composition or characteristics of any such Benchmark Replacement, including whether it is similar to, or produces the same value or economic equivalence to USD LIBOR (or any other Benchmark) or have the same volume or liquidity as did USD LIBOR (or any other Benchmark), (iii) any actions or use of its discretion or other decisions or determinations made with respect to any matters covered by this Section 2.10 including, without limitation, whether or not a Benchmark Transition Event has occurred, the removal or lack thereof of unavailable or non-representative tenors, the implementation or lack thereof of any Benchmark Replacement Conforming Changes, the delivery or non-delivery of any notices required by clause (d) above or otherwise in accordance herewith, and (iv) the effect of any of the foregoing provisions of Section 2.10.
Appears in 1 contract
Samples: Borrower Assignment and Assumption Agreement (BrightSphere Investment Group Inc.)
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon the occurrence of a Benchmark Transition EventEvent with respect to any Benchmark, the Administrative Agent, the Required Lenders Agent and the Borrower Company may amend this Agreement to replace the then-current such Benchmark with withand its related Benchmark Replacement Date, then (x) if a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall will become effective is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at 5:00 p.m. (New York City time) on the date that fifth (5th) Business Day after the Administrative Agent has posted such proposed amendmentdate notice of such Benchmark Replacement is provided to all affected Lenders and the Company 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 amendmentBenchmark Replacement from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendmentLenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall this Section 2.22(a) will occur prior to the applicable Benchmark Transition Start Date.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrowerconsent of the Company, to make Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iiic) The Administrative Agent shall will promptly notify the Borrower Company and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, and (iv) administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will promptly notify the Company of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (ivSection 2.22(d) below and (y) 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 SectionSection 2.22, 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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.22.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate, EURIBOR or CDORTerm CXXXX Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (in consultation with the Required Lenders and the Borrower) or (B) 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 not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) 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.
(ve) Upon the BorrowerCompany’s receipt of notice of the commencement of a Benchmark Unavailability PeriodPeriod with respect to a given Benchmark, (i) the applicable Borrower may revoke any pending request for a Term SOFR Borrowing, Term CXXXX Borrowing, Daily Simple CXXXX Borrowing or a Eurocurrency Borrowing of, conversion to or continuation of Term SOFR Loans, Term CXXXX Loans, Daily Simple CXXXX Loans or Eurocurrency Loans, or a SXXXX Xxxx Borrowing of, conversion to or continuation of SXXXX Rate Loans, in each case, to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable currency and, failing that, (A) in the case of any request for any affected Term SOFR Borrowing, if applicable, the applicable Borrower shall will be deemed to have converted any such request into a request for an ABR Borrowing or conversion to ABR Loans in the amount specified therein and, (B) in the case of any request for any affected Term CXXXX Borrowing, if applicable, the applicable Borrower will be deemed to have converted any such request into a request for a Daily Simple CXXXX Borrowing of or conversion to Base Daily Simple CXXXX Loans in the amount specified therein and (C) in the case of any request for any affected SXXXX Rate Borrowing, Daily Simple CXXXX Borrowing or Eurocurrency Borrowing, if applicable, then such request shall be ineffective and (ii)(A) any outstanding affected Term SOFR Loans, if applicable, will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period and, (B) any outstanding affected Term CXXXX Loans, if applicable, will be deemed to have been converted into Daily Simple CXXXX Loans at the end of the applicable Interest Period and (C) any outstanding affected SXXXX Rate Loans or, Daily Simple CXXXX Loans or Eurocurrency Rate Loans, at the applicable Borrower’s election, shall either (I) be converted into ABR Loans denominated in US Dollars (in an amount equal to the US Dollar Equivalent of such currency) immediately or, in the case of Eurocurrency Loans, at the end of the applicable Interest Period or (II) be prepaid in full immediately or, in the case of Eurocurrency Loans, at the end of the applicable Interest Period; provided that, with respect to any SXXXX Xxxx Loan, if no election is made by the applicable Borrower by the date that is three Business Days after receipt by the Company of such notice, the applicable Borrower shall be deemed to have elected clause (I) above; provided, further, that, with respect to any Eurocurrency Loan, if no election is made by the applicable Borrower by the earlier of (x) the date that is three Business Days after receipt by the Company of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Loan, the applicable Borrower shall be deemed to have elected clause (I) above. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.14. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for the any then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, shall will not be used in any determination of the Alternate Base Rate.
Appears in 1 contract
Benchmark Replacement Setting. (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document (and any Hedge Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.07(f)), upon the occurrence of if a Benchmark Transition EventEvent or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Administrative Agent, the Required Lenders and the Borrower may amend this Agreement to replace Reference Time in respect of any setting of the then-current Benchmark with Benchmark, then, in each instance (A) if a Benchmark Replacement. Any Replacement is determined in accordance with clause (a) 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 with respect to to, or further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a Benchmark Transition Event shall become effective Replacement is determined in accordance with clause (c) of the definition of Benchmark Replacement for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date that notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with a Benchmark Replacement pursuant to these provisions shall occur prior to the applicable Benchmark Transition Start DateLenders.
(ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall will have the right, in consultation with the Borrower, right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary contained herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes shall will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iii) The Administrative Agent shall will promptly notify the Borrower and the Lenders of (iA) any occurrence of a Benchmark Transition Event, (ii) Replacement Date and the implementation of any related Benchmark Replacement, (iiiB) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) (xC) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (yD) 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 2.07(f) 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 Benchmark 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, Section 2.07(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, shall will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this SectionSection 2.07(f).
(iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rateor ICE LIBOR) and either (Ax) 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 (in consultation with the Required Lenders and the Borrower) or (By) the regulatory supervisor for the administrator of such Benchmark Benchmark, or any 15 Hersha Hospitality – 2016 Term Loan Amendment No. 4 Governmental Authority having jurisdiction over the Administrative Agent or any Lender, 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 (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) 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 (Ax) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (By) is not, or is no longer, subject to an announcement that it is not or will not no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) may modify the definition of “Interest Period” (or any similar or analogous definition) Period for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing consisting of, conversion to or continuation of SOFR Loans Eurodollar Rate Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower shall will be deemed to have converted any such request into a request for a Borrowing consisting of or conversion to Base Rate Loans. During Advances.
(vi) The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to (A) the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of Eurodollar Rate or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation any Benchmark Replacement implemented hereunder), (B) the composition or characteristics of any such Benchmark Replacement, including whether it is similar to, or produces the same value or economic equivalence to ICE LIBOR (or any other Benchmark) or have the same volume or liquidity as did ICE LIBOR (or any other Benchmark), (C) any actions or use of its discretion or other decisions or determinations made (except to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct) with respect to any matters covered by this Section 2.07(f) including, without limitation, whether or not a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available TenorTransition Event has occurred, the component removal or lack thereof of unavailable or non-representative tenors, the implementation or lack thereof of any Benchmark Replacement Conforming Changes, the delivery or non-delivery of any notices required by this Section 2.07(f) or otherwise in accordance herewith, and (D) the effect of any of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, shall not be used in any determination foregoing provisions of this Section 2.07(f).
(e) Section 2.09(b)(iii) of the Base Rate2016 Term Loan Agreement is hereby amended to replace the references to “Section 2.07(d)” to “Sections 2.07(d) and (f)”.
Appears in 1 contract
Benchmark Replacement Setting. (ia) Notwithstanding anything to the contrary contained herein or in any other Loan Documentthis Agreement, upon the occurrence of if a Benchmark Transition Event, the Administrative Agent, the Required Lenders Event and the Borrower may amend this Agreement to replace its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event shall become effective on the date that the Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of a Benchmark with Benchmark, then (x) if a Benchmark Replacement pursuant to these provisions shall occur prior is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of the Borrower, the Class A Trustee, any Holder or any other Person and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided by the Liquidity Provider to the applicable Borrower and United without any amendment to this Agreement, or further action or consent of the Borrower, the Class A Trustee, any Holder or any other Person, so long as the Liquidity Provider has not received, by such time, written notice of objection to such Benchmark Transition Start DateReplacement from the Borrower or United.
(iib) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent and the Required Lenders shall Liquidity Provider will have the right, in consultation with the Borrower, right to make Conforming Changes from time to time in consultation with United, and, notwithstanding anything to the contrary contained herein or in any other Loan Documentherein, any amendments implementing such Conforming Changes shall will become effective without any further action or consent of the Borrower, the Class A Trustee, any other party to this Agreement Holder or any other Loan DocumentPerson.
(iiic) The Administrative Agent shall Liquidity Provider will promptly notify the Borrower Borrower, the Class A Trustee and the Lenders United of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, Replacement and (iiiii) the effectiveness of any Conforming ChangesChanges in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Liquidity Provider will notify the Borrower, the Class A Trustee and (iv) United of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below Section 3.11(d), and (y) 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) Liquidity Provider pursuant to this SectionSection 3.11, 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, shall will be conclusive and binding absent manifest Revolving Credit Agreement - UAL 2024-1A error and may be made in its or their sole discretion and without consent from the Borrower, the Class A Trustee, any other party to this Agreement Holder or any other Loan DocumentPerson, except, in each case, as expressly required pursuant to this SectionSection 3.11.
(ivd) Notwithstanding anything to the contrary herein or in any other Loan Document, at At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) ), and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion (Liquidity Provider in consultation with the Required Lenders and the Borrower) United or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Liquidity Provider may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent (in consultation with the Required Lenders and the Borrower) Liquidity Provider 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; provided, that in no event will any of the foregoing changes (including with respect to Interest Periods) result in changes to when interest is required to be paid (which shall at all times remain consistent with the relevant dates for which distributions to the Liquidity Provider are contemplated or otherwise permitted under the Intercreditor Agreement).
(ve) 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 outstanding principal amount of the SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower Advances shall be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for Advances, effective the then-current Benchmark is not an Available Tenor, the component first day of the Base Rate based upon next succeeding Interest Period; provided, that, if prior to the then-current Benchmark or such tenor for such Benchmarkcommencement of (or, as applicable, shall not be used in any the date for determination of the applicable Benchmark for) such or any subsequent Interest Period, an applicable Benchmark Replacement has been established and become effective, then effective on the first day of such Interest Period for which the Benchmark Replacement is so effective, such Base RateRate Advances will be converted to Advances accruing interest based on the relevant Benchmark Replacement.
(f) As used in this Section 3.11, the following terms have the following meanings:
Appears in 1 contract
