Common use of LIBOR Unavailability Clause in Contracts

LIBOR Unavailability. If Bank determines, in its sole discretion, that the LIBOR Index (a) has been or imminently will be discontinued, (b) is no longer an industry accepted reference rate for loans of a similar type to the Loan and/or has been superseded by an alternative reference rate, or (c) is no longer representative or may not be used pursuant to a public statement by the administrator of the LIBOR Index or other regulatory authority (e.g., the Federal Reserve), in each case with respect to any type of loan or transaction, then Bank may select an alternative reference rate, which may reflect adjustments to the spread or margin (collectively, the “Substitute Index Rate”), to be used in lieu of the LIBOR Index based interest rate set forth in this Agreement (the “Pre-Substitute Rate”). Bank and Borrowers acknowledge that the discontinuation of the LIBOR Index is a future event over which neither Bank nor any Borrower has influence but which will necessarily affect the Pre-Substitute Rate. Accordingly, Bank shall use reasonable efforts to select a substitute Index rate that Bank in good faith believes is a practical means of preserving the party’s intent relative to the economics of the Pre-Substitute Rate. Notwithstanding the foregoing, the parties acknowledge that initially and/or over time, the Substitute Index Rate will differ from the Pre-Substitute Rate. In selecting the Substitute Index Rate, Bank shall consider to what extent and the manner in which industry standard accepted substitutes for the LIBOR Index has been established, and the parties agree that the different substitute Index Rates may be selected for different types of loans and transactions. Borrower agrees that Bank shall not be liable in any manner for the selection of a Substitute Index Rate provided Bank makes such selection in good faith. The Substitute Index Rate shall be in lieu of the Pre-Substitute Rate and all references in this Agreement to the Pre-Substitute Rate shall be deemed to refer to the Substitute Index Rate, effective as of the date specified by Bank, in a written notice given by Bank to Borrowers. To the extent practicable, such notice shall be given at least 30 days prior to the Effective Date. The Substitute Index Rate shall remain in effect from the effective date set forth in such notice until the Maturity Date as such date may be extended, unless such an instance occurs where the Substitute Index Rate is no longer available, in which case the provisions of this Section will again apply for the purposes of replacing the Substitute Index Rate.

LIBOR Unavailability. If Bank determinesthe Lender determines in it reasonable --------------------- good faith judgment (which determination shall be conclusive, absent manifest error) that (i) the making or maintenance of any LIBOR Loan would violate any applicable law, rule, regulation or directive, whether or not having the force of law, (ii) United States dollar deposits in its sole discretionthe principal amount, that and for periods equal to term of the LIBOR Index (a) has been or imminently will be discontinuedLoans for funding any LIBOR Loan are not available in the London Interbank Eurodollar market in the ordinary course of business, (biii) is no longer an industry accepted reference rate by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for loans of a similar type ascertaining the London Interbank Offered Rate or BBA LIBOR Daily Floating Rate to be applicable to the Loan and/or has been superseded by an alternative reference raterelevant LIBOR Loan, or (civ) is no longer representative the London Interbank Offered Rate or BBA LIBOR Daily Floating Rate does not accurately reflect the cost to the Lender of a LIBOR Loan, the Lender shall promptly notify the Borrowers thereof and, so long as the foregoing conditions continue, none of the Loans may not be used pursuant advanced as a LIBOR Loan thereafter. In addition, at the Borrowers' option, each existing LIBOR Loan shall be immediately (i) converted to a public statement Prime Loan on the next Business Day (in the case of a Loan bearing interest at the BBA LIBOR Daily Floating Rate) or the last Business Day of the then existing LIBOR Interest Period (in the case of a Loan bearing interest at the London Interbank Offered Rate), or (ii) due and payable on the next Business Day (in the case of a Loan bearing interest at the BBA LIBOR Daily Floating Rate) or the last Business Day of the then existing LIBOR Interest Period (in the case of a Loan bearing interest at the London Interbank Offered Rate), without further demand, presentment, protest or notice of any kind, all of which are hereby waived by the administrator of the LIBOR Index or other regulatory authority (e.g., the Federal Reserve), in each case with respect to any type of loan or transaction, then Bank may select an alternative reference rate, which may reflect adjustments to the spread or margin (collectively, the “Substitute Index Rate”), to be used in lieu of the LIBOR Index based interest rate set forth in this Agreement (the “Pre-Substitute Rate”). Bank and Borrowers acknowledge that the discontinuation of the LIBOR Index is a future event over which neither Bank nor any Borrower has influence but which will necessarily affect the Pre-Substitute Rate. Accordingly, Bank shall use reasonable efforts to select a substitute Index rate that Bank in good faith believes is a practical means of preserving the party’s intent relative to the economics of the Pre-Substitute Rate. Notwithstanding the foregoing, the parties acknowledge that initially and/or over time, the Substitute Index Rate will differ from the Pre-Substitute Rate. In selecting the Substitute Index Rate, Bank shall consider to what extent and the manner in which industry standard accepted substitutes for the LIBOR Index has been established, and the parties agree that the different substitute Index Rates may be selected for different types of loans and transactions. Borrower agrees that Bank shall not be liable in any manner for the selection of a Substitute Index Rate provided Bank makes such selection in good faith. The Substitute Index Rate shall be in lieu of the Pre-Substitute Rate and all references in this Agreement to the Pre-Substitute Rate shall be deemed to refer to the Substitute Index Rate, effective as of the date specified by Bank, in a written notice given by Bank to Borrowers. To the extent practicable, such notice shall be given at least 30 days prior to the Effective Date. The Substitute Index Rate shall remain in effect from the effective date set forth in such notice until the Maturity Date as such date may be extended, unless such an instance occurs where the Substitute Index Rate is no longer available, in which case the provisions of this Section will again apply for the purposes of replacing the Substitute Index Rate.

LIBOR Unavailability. If Bank determinesthe Administrative Agent or the Lender has determined that (a)(i) the administrator, or any relevant agency or authority for such administrator, of LIBOR (or any substitute index which replaces LIBOR (LIBOR or such replacement, the “Benchmark”)) has announced that such Benchmark will no longer be provided, (ii) any relevant agency or authority has announced that such Benchmark is no longer representative, or (iii) any similar circumstance exists such that such Benchmark has become unavailable or ceased to exist, or (b) similar loans are being documented with a replacement rate to such Benchmark, the Administrative Agent and the Lender will (x) replace such Benchmark with a replacement rate or (y) if any such circumstance applies to fewer than all tenors of such Benchmark used for determining an interest period hereunder, discontinue the availability of the affected interest periods. In the case of LIBOR, (a) for any advance hereunder where the rate is reset daily, such replacement rate will be Daily Simple SOFR, plus the adjustment described below, and (b) for any advance hereunder where the rate is reset at monthly or longer intervals, such replacement rate will be Term SOFR, plus the adjustment described below; provided that if the Administrative Agent or the Lender determines in its sole discretiondiscretion that (i) Term SOFR is not available for the applicable advance at the time of such replacement or (ii) the administration of Term SOFR is not administratively feasible for the Administrative Agent or the Lender, then such replacement rate will be Daily Simple SOFR, plus the adjustment described below. In each case, the Administrative Agent and the Lender will add an adjustment to Term SOFR or Daily Simple SOFR that is selected or recommended by the Board. In connection with the selection and implementation of any such replacement rate, the Administrative Agent and the Administrative Agent or the Lender may make any technical, administrative or operational changes that the LIBOR Index (a) has been Lender decides may be appropriate to reflect the adoption and implementation of such replacement rate. The Administrative Agent and the Lender do not warrant or imminently will be discontinued, (b) is no longer an industry accepted reference rate accept any responsibility for loans of a similar type to the Loan and/or has been superseded by an alternative reference rateadministration or submission of, or (c) is no longer representative any other matter related to, LIBOR or may not be used pursuant to a public statement by the administrator of the LIBOR Index or other regulatory authority (e.g., the Federal Reserve), in each case with respect to any type of loan alternative or transactionsuccessor rate thereto, then Bank may select an alternative reference rateor replacement rate thereof, which may reflect adjustments to including without limitation whether any such alternative, successor or replacement rate will have the spread same value as, or margin (collectivelybe economically equivalent to, the “Substitute Index Rate”), to be used in lieu of the LIBOR Index based interest rate set forth in this Agreement (the “Pre-Substitute Rate”). Bank and Borrowers acknowledge that the discontinuation of the LIBOR Index is a future event over which neither Bank nor any Borrower has influence but which will necessarily affect the Pre-Substitute Rate. Accordingly, Bank shall use reasonable efforts to select a substitute Index rate that Bank in good faith believes is a practical means of preserving the party’s intent relative to the economics of the Pre-Substitute Rate. Notwithstanding the foregoing, the parties acknowledge that initially and/or over time, the Substitute Index Rate will differ from the Pre-Substitute Rate. In selecting the Substitute Index Rate, Bank shall consider to what extent and the manner in which industry standard accepted substitutes for the LIBOR Index has been established, and the parties agree that the different substitute Index Rates may be selected for different types of loans and transactions. Borrower agrees that Bank shall not be liable in any manner for the selection of a Substitute Index Rate provided Bank makes such selection in good faithLIBOR. The Substitute Index Rate Administrative Agent’s and Lender’s internal records of applicable interest rates shall be determinative in lieu the absence of the Pre-Substitute Rate and all references in this Agreement to the Pre-Substitute Rate shall be deemed to refer to the Substitute Index Rate, effective as of the date specified by Bank, in a written notice given by Bank to Borrowers. To the extent practicable, such notice shall be given at least 30 days prior to the Effective Date. The Substitute Index Rate shall remain in effect from the effective date set forth in such notice until the Maturity Date as such date may be extended, unless such an instance occurs where the Substitute Index Rate is no longer available, in which case the provisions of this Section will again apply for the purposes of replacing the Substitute Index Ratemanifest error.

LIBOR Unavailability. If Bank determines(i) In the event that Agent shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto), on any date for determining the LIBOR Rate for any Interest Period that deposits in its sole discretionthe principal amounts and currencies of the Loans comprising such Borrowing of LIBOR Rate Loans are not generally available in the relevant market, then Agent shall within a reasonable time thereafter give notice (if by telephone, confirmed in writing) to Administrative Borrower and Lenders of such determination. Thereafter, LIBOR Loans shall no longer be available until such time as Agent notifies Administrative Borrower and Lenders that the circumstances giving rise to such notice by Agent no longer exist (which notice Agent agrees to give at such time when such circumstances no longer exist), and any LIBOR Notice given by Administrative Borrower with respect to LIBOR Loans that have not yet been incurred shall be deemed rescinded by the Borrowers. (ii) Notwithstanding the foregoing, if Agent has made the determination described in the preceding paragraph because the supervisor for the administrator of the LIBOR Rate or a Governmental Authority having jurisdiction over Agent or any Lender has made a public statement identifying a specific date after which the LIBOR Rate shall no longer be used for determining interest rates for loans and which specifies the new rate that would be used in lieu thereof, and Administrative Borrower or Agent shall so request, Agent and Administrative Borrower shall negotiate in good faith to amend the definition of "LIBOR Rate" and other applicable provisions (including any appropriate adjustment to the Applicable Margin) to preserve the original intent thereof in light of such change (it being understood that (i) if, at any time, any rate is below zero under such amended definition, such rate shall be deemed to be zero at such time and (ii) any rate so amended will be determined giving due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time); provided, that until so amended, such Loans will be handled as otherwise provided pursuant to the LIBOR Index terms of this Section 2.12. Notwithstanding anything to the contrary in Section 14.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as Agent shall not have received within five (5) days of the date notice of such amendment is provided to Lenders, a written notice from Required Lenders stating that such Required Lenders object to such amendment. (c) By deleting Section 4.18 of the Credit Agreement and by substituting the following in lieu thereof: 4.18 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. No Borrower nor any of its Subsidiaries is in violation of any Sanctions. No Borrower nor any of its Subsidiaries nor, to the knowledge of such Borrower, any director, officer, employee, agent or Affiliate of such Borrower or such Subsidiary (a) has been is a Sanctioned Person or imminently will be discontinueda Sanctioned Entity, (b) is no longer an industry accepted reference rate for loans of a similar type to the Loan and/or has been superseded by an alternative reference rateany assets located in Sanctioned Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each Borrower and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each Borrower and its Subsidiaries, and to the knowledge of each such Borrower, each director, officer, employee, agent and Affiliate of each such Borrower and each such Subsidiary, is no longer representative in compliance with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. No proceeds of any Loan made or may not Letter of Credit issued hereunder will be used pursuant to fund any operations in, finance any investments or activities in, or make any payments to, a public statement by the administrator of the LIBOR Index Sanctioned Person or other regulatory authority (e.g.a Sanctioned Entity, the Federal Reserve), in each case with respect to any type of loan or transaction, then Bank may select an alternative reference rate, which may reflect adjustments to the spread or margin (collectively, the “Substitute Index Rate”), to be otherwise used in lieu of the LIBOR Index based interest rate set forth in this Agreement (the “Pre-Substitute Rate”). Bank and Borrowers acknowledge that the discontinuation of the LIBOR Index is a future event over which neither Bank nor any Borrower has influence but which will necessarily affect the Pre-Substitute Rate. Accordingly, Bank shall use reasonable efforts to select a substitute Index rate that Bank in good faith believes is a practical means of preserving the party’s intent relative to the economics of the Pre-Substitute Rate. Notwithstanding the foregoing, the parties acknowledge that initially and/or over time, the Substitute Index Rate will differ from the Pre-Substitute Rate. In selecting the Substitute Index Rate, Bank shall consider to what extent and the manner in which industry standard accepted substitutes for the LIBOR Index has been established, and the parties agree that the different substitute Index Rates may be selected for different types of loans and transactions. Borrower agrees that Bank shall not be liable in any manner for that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person (including any Lender, Bank Product Provider, or other individual or entity participating in any transaction). (d) By deleting Section 5.19 of the selection of a Substitute Index Rate provided Bank makes such selection in good faith. The Substitute Index Rate shall be Credit Agreement and by substituting the following in lieu of the Pre-Substitute Rate and all references in this Agreement to the Pre-Substitute Rate shall be deemed to refer to the Substitute Index Rate, effective as of the date specified by Bank, in a written notice given by Bank to Borrowers. To the extent practicable, such notice shall be given at least 30 days prior to the Effective Date. The Substitute Index Rate shall remain in effect from the effective date set forth in such notice until the Maturity Date as such date may be extended, unless such an instance occurs where the Substitute Index Rate is no longer available, in which case the provisions of this Section will again apply for the purposes of replacing the Substitute Index Rate.thereof: 5.19

LIBOR Unavailability. If Bank determines, the Lender determines in its sole discretionreasonable --------------------- good faith judgment (which determination shall be conclusive, absent manifest error) prior to the commencement of any LIBOR Interest Period that (i) the making or maintenance of any LIBOR Loan or Fixed LIBOR Loan would violate any applicable law, rule, regulation or directive, whether or not having the force of law, (ii) United States dollar deposits in the principal amount, and for periods equal to the LIBOR Index (a) has been Interest Period for funding any LIBOR Loan or imminently will be discontinuedany Fixed LIBOR Loan are not available in the London Interbank Eurodollar market in the ordinary course of business, (biii) is no longer an industry accepted reference rate by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for loans of a similar type ascertaining the LIBOR Rate to be applicable to the relevant LIBOR Loan and/or has been superseded by an alternative reference rateor the Fixed LIBOR Rate to be applicable to the relevant Fixed LIBOR Loan, or (civ) is no longer representative the LIBOR Rate does not accurately reflect the cost to the Lender of a LIBOR Loan or the Fixed LIBOR Rate does not accurately reflect the cost to the Lender of a Fixed LIBOR Loan, the Lender shall promptly notify the Borrowers thereof and, so long as the foregoing conditions continue, none of the Loans may not be used pursuant advanced as a LIBOR Loan thereafter. In addition, at the Borrowers' option, each existing LIBOR Loan shall be immediately (i) converted to a public statement Prime Loan, or (ii) due and payable without further demand, presentment, protest or notice of any kind, all of which are hereby waived by the administrator of the LIBOR Index or other regulatory authority (e.g., the Federal Reserve), in each case with respect to any type of loan or transaction, then Bank may select an alternative reference rate, which may reflect adjustments to the spread or margin (collectively, the “Substitute Index Rate”), to be used in lieu of the LIBOR Index based interest rate set forth in this Agreement (the “Pre-Substitute Rate”). Bank and Borrowers acknowledge that the discontinuation of the LIBOR Index is a future event over which neither Bank nor any Borrower has influence but which will necessarily affect the Pre-Substitute Rate. Accordingly, Bank shall use reasonable efforts to select a substitute Index rate that Bank in good faith believes is a practical means of preserving the party’s intent relative to the economics of the Pre-Substitute Rate. Notwithstanding the foregoing, the parties acknowledge that initially and/or over time, the Substitute Index Rate will differ from the Pre-Substitute Rate. In selecting the Substitute Index Rate, Bank shall consider to what extent and the manner in which industry standard accepted substitutes for the LIBOR Index has been established, and the parties agree that the different substitute Index Rates may be selected for different types of loans and transactions. Borrower agrees that Bank shall not be liable in any manner for the selection of a Substitute Index Rate provided Bank makes such selection in good faith. The Substitute Index Rate shall be in lieu of the Pre-Substitute Rate and all references in this Agreement to the Pre-Substitute Rate shall be deemed to refer to the Substitute Index Rate, effective as of the date specified by Bank, in a written notice given by Bank to Borrowers. To the extent practicable, such notice shall be given at least 30 days prior to the Effective Date. The Substitute Index Rate shall remain in effect from the effective date set forth in such notice until the Maturity Date as such date may be extended, unless such an instance occurs where the Substitute Index Rate is no longer available, in which case the provisions of this Section will again apply for the purposes of replacing the Substitute Index Rate.

LIBOR Unavailability. If Bank determinesthe Lender determines in good faith (which determination shall be conclusive, absent manifest error) prior to the commencement of any LIBOR Interest Period or Interest Period that (i) the making or maintenance of any LIBOR Loan or Fixed LIBOR Loan would violate any applicable law, rule, regulation or directive, whether or not having the force of law, (ii) United States dollar deposits in its sole discretionthe principal amount, that and for periods equal to the LIBOR Index (a) has been Interest Period for funding any LIBOR Loan or imminently will be discontinuedfor periods equal to the Interest Period for funding any Fixed LIBOR Loan are not available in the London Interbank Eurodollar market in the ordinary course of business, (biii) is no longer an industry accepted reference rate by reason of circumstances affecting the London Interbank Eurodollar market, adequate and fair means do not exist for loans of a similar type ascertaining the LIBOR Rate to be applicable to the relevant LIBOR Loan and/or has been superseded by an alternative reference rateor the Fixed LIBOR Rate to be applicable to the relevant Fixed LIBOR Loan, or (civ) is no longer representative the LIBOR Rate does not accurately reflect the cost to the Lender of a LIBOR Loan or the Fixed LIBOR Rate does not accurately reflect the cost to the Lender of a Fixed LIBOR Loan, the Lender shall promptly notify the Distribution Borrowers and/or the Fulfillment Borrowers, as applicable, thereof and, so long as the foregoing conditions continue, none of the Loans may not be used pursuant advanced as a LIBOR Loan or Fixed LIBOR Loans thereafter. In addition, at the Distribution Borrowers’ and the Fulfillment Borrowers’ option, as applicable, each existing LIBOR Loan and Fixed LIBOR Loan shall be immediately (i) converted to a public statement Prime Loan, or (ii) due and payable without further demand, presentment, protest or notice of any kind, all of which are hereby waived by the administrator of the LIBOR Index or other regulatory authority (e.g., the Federal Reserve), in each case with respect to any type of loan or transaction, then Bank may select an alternative reference rate, which may reflect adjustments to the spread or margin (collectively, the “Substitute Index Rate”), to be used in lieu of the LIBOR Index based interest rate set forth in this Agreement (the “Pre-Substitute Rate”). Bank and Distribution Borrowers acknowledge that the discontinuation of the LIBOR Index is a future event over which neither Bank nor any Borrower has influence but which will necessarily affect the Pre-Substitute Rate. Accordingly, Bank shall use reasonable efforts to select a substitute Index rate that Bank in good faith believes is a practical means of preserving the party’s intent relative to the economics of the Pre-Substitute Rate. Notwithstanding the foregoing, the parties acknowledge that initially and/or over time, the Substitute Index Rate will differ from the Pre-Substitute Rate. In selecting the Substitute Index Rate, Bank shall consider to what extent and the manner in which industry standard accepted substitutes for the LIBOR Index has been established, and the parties agree that the different substitute Index Rates may be selected for different types of loans and transactions. Borrower agrees that Bank shall not be liable in any manner for the selection of a Substitute Index Rate provided Bank makes such selection in good faith. The Substitute Index Rate shall be in lieu of the Pre-Substitute Rate and all references in this Agreement to the Pre-Substitute Rate shall be deemed to refer to the Substitute Index Rate, effective as of the date specified by Bank, in a written notice given by Bank to Fulfillment Borrowers. To the extent practicable, such notice shall be given at least 30 days prior to the Effective Date. The Substitute Index Rate shall remain in effect from the effective date set forth in such notice until the Maturity Date as such date may be extended, unless such an instance occurs where the Substitute Index Rate is no longer available, in which case the provisions of this Section will again apply for the purposes of replacing the Substitute Index Rate.