Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that: (i) adequate and reasonable means do not exist for ascertaining SOFR and one month, three month and six month interest periods of Term SOFR, including because SOFR or the Term SOFR Screen Rate, as applicable, is not available or published on a current basis and such circumstances are unlikely to be temporary; or (ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate, shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide SOFR or such interest periods of Term SOFR, as applicable, after such specific date (the latest date on 68 which SOFR or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); or, if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing SOFR, Daily Simple SOFR and/or Term SOFR, or any then current Successor Rate, in accordance with this Section 3.03 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars for such benchmarks. For the avoidance of doubt, any such proposed rate, including for the avoidance of doubt, any adjustment thereto, shall constitute a “Successor Rate”). Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Getty Realty Corp /Md/)
Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan DocumentDocuments, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the BorrowerBorrower and the Collateral Administrator) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining SOFR and one month, three month and six month interest periods of Term SOFRSOFR , including including, without limitation, because SOFR or the Term SOFR Screen Rate, as applicable, Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Applicable Authority having jurisdiction over the Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate, Rate shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of U.S. dollar loans denominated syndicated loansin Dollars, or shall or will otherwise cease, ; provided that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, Agent that will continue to provide such representative tenor(s) of SOFR or such interest periods of Term SOFR, as applicable, after such specific date for Dollars (the latest date on 68 which SOFR or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate Rate) are no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”); or
(iii) syndicated loans currently being executed and agented in the U.S., are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace SOFR for Dollars; or if the events or circumstances of the type described in Section 3.03(b)(i), (ii) or (iiiii) have occurred with respect to the SOFR or any Successor Rate then in effect, thenthen (x) with respect to a replacement of Term SOFR and if the Administrative Agent determines that Daily SOFR is available, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily SOFR for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) otherwise, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing SOFR, Daily Simple SOFR and/or Term SOFR, or any then current Successor Rate, Rate in accordance with this Section 3.03 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars Dollars for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars Dollars for such benchmarks. For , which adjustment or method for calculating such adjustment shall be published on an information service as selected by the avoidance of doubt, Administrative Agent from time to time in its reasonable discretion and may be periodically updated (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, shall constitute a “Successor Rate”). Any , and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender (with a copy to the Collateral Administrator) of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero0%, the Successor Rate will be deemed to be zero 0% for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders (with a copy to the Collateral Administrator) reasonably promptly after such amendment becomes effective.
Appears in 1 contract
Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan DocumentDocuments, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
: (i) adequate and reasonable means do not exist for ascertaining SOFR and one month, three month and six month interest periods of Term SOFR, including because SOFR or the Term SOFR Screen Rate, as applicable, is not available or published on a current basis and such circumstances are unlikely to be temporary; or
or (ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Applicable Authority having jurisdiction over the Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate, shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of U.S. dollar syndicated loans denominated syndicated loansin Dollars, or shall or will otherwise cease, provided that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, Agent that will continue to provide SOFR or such interest periods of Term SOFR, as applicable, after such specific date on a representative basis (the latest date on 68 which SOFR or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are is no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”); or, or if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing SOFR, Daily Simple SOFR and/or Term SOFR, for Dollars or any then current Successor Rate, Rate for Dollars in accordance with this Section 3.03 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars Dollars for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars Dollars for such benchmarks. For the avoidance of doubt, benchmarks (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, shall constitute a “Successor Rate”). Any , and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
Appears in 1 contract
Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Amendment, the Credit Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) the notify Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(ia) adequate and reasonable means do not exist for ascertaining SOFR and one month, three month and six month interest periods because none of Term SOFR, the tenors of SOFR (including because SOFR or the Term SOFR Screen Rate, as applicable, is not any forward-looking term rate thereof) are available or published on a current basis and such circumstances are unlikely to be temporary; or
(iib) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Applicable Authority having jurisdiction over the Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, or one month, three month and six month interest periods all tenors of Term SOFR or the Term SOFR Screen Rate, (including any forward-looking term rate thereof) shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide such representative tenor(s) of SOFR or such interest periods of Term SOFR, as applicable, after such specific date (the latest date on 68 which all tenors of SOFR or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate (including any forward-looking term rate thereof) are no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”); or
(c) syndicated loans currently being executed and agented in the United States, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace SOFR; or if any of the events or circumstances of the type described in Section 3.03(b)(iclauses (a)-(c) or (ii) above have occurred with respect to the Successor Rate then in effect, then, the Administrative Agent and the Borrower may amend this Agreement Amendment and the other Loan Documents solely for the purpose of replacing SOFR, Daily Simple SOFR and/or Term SOFR, or any then current Successor Rate, Rate in accordance with this Section 3.03 with an alternative another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. Dollar-denominated credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars United States for such alternative benchmarks, benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. Dollar-denominated credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars United States for such benchmarks. For the avoidance of doubt, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Administrative Agent from time to time in its reasonable discretion and may be periodically updated (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, shall constitute a “Successor Rate”). Any , and any such amendment shall become effective at 5:00 p.m. Administrative Agent’s Time on the fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers Borrower, unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zerozero (0.00%), the Successor Rate will be deemed to be zero (0.00%) for the purposes of this the Credit Agreement and the other Loan Documents. Notwithstanding anything to the contrary in this Amendment, the Credit Agreement or any other Loan Documents, if Administrative Agent determines that Term SOFR has become available and is administratively feasible for Administrative Agent and Administrative Agent notifies Borrower and each Lender of such availability, Administrative Agent may, with the prior written consent of Borrower, amend this Amendment and the other Loan Documents (any such amendment, a “Term SOFR Availability Amendment”) to provide for the availability of Loans bearing interest at one or more Term SOFR-based rates (“Term SOFR Advances”) in a form reasonably acceptable to Administrative Agent, together with any Conforming Changes. Such amendment shall become effective no less than thirty (30) days after the date of such notice. For the avoidance of doubt, any Loan bearing interest by reference to Term SOFR will bear interest at a per annum rate equal to Term SOFR plus 1.75% plus the applicable SOFR Adjustment. In connection with the implementation of a Successor Rate the or Term SOFR, 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 AgreementAmendment; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
Appears in 1 contract
Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining SOFR and one month, three month and six month interest periods of Term SOFR, including because SOFR or the Term SOFR Screen Rate, as applicable, is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate, shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide SOFR or such interest periods of Term SOFR, as applicable, after such specific date (the latest date on 68 which SOFR or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); or, or if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing SOFR, Daily Simple SOFR and/or Term SOFR, or any then current Successor Rate, in accordance with this Section 3.03 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars for such benchmarks. For the avoidance of doubt, any such proposed rate, including for the avoidance of doubt, any adjustment thereto, shall constitute a “Successor Rate”). Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.86
Appears in 1 contract
Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan DocumentDocuments, if the Administrative Agent Lender determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) notifies the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) Lender that the Borrower or Required Lenders (as applicable) have has determined, that:
(i) adequate and reasonable means do not exist for ascertaining SOFR and one month, three month and six month interest periods Interest Periods of Term SOFR, including including, without limitation, because SOFR or the Term SOFR Screen Rate, as applicable, Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or Bloomberg Lender or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, or one month, three month and six month interest periods Interest Periods of Term SOFR or the Term SOFR Screen Rate, Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar Dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative AgentLender, that will continue to provide SOFR or such interest periods Interest Periods of Term SOFR, as applicable, SOFR after such specific date (the latest date on 68 which SOFR or one month, three month and six month interest periods Interest Periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); orthen, on a date and time determined by the Lender (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant Interest Payment Date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated that can be determined by the Lender, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”). If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a monthly basis. Notwithstanding anything to the contrary herein, (i) if the Lender determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, thenthen in each case, the Administrative Agent Lender and the Borrower may amend this Agreement solely for the purpose of replacing SOFR, Daily Simple Term SOFR and/or Term SOFR, or any then current Successor Rate, Rate in accordance with this Section 3.03 at the end of any Interest Period, relevant Interest Payment Date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit Dollar denominated bilateral facilities syndicated and agented executed in the U.S. and denominated in U.S. dollars United States for such alternative benchmarks, benchmark. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit Dollar denominated bilateral facilities syndicated and agented executed in the U.S. and denominated in U.S. dollars United States for such benchmarksbenchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Lender from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate, including for the avoidance of doubt, any adjustment theretorate and adjustments, shall constitute a “Successor Rate”). Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment. The Administrative Agent Lender will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative AgentLender, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative AgentLender. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero0%, the Successor Rate will be deemed to be zero 0% for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate Rate, the Administrative Agent Lender 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; provided that, with respect to any such amendment effected, the Administrative Agent Lender shall post provide each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
Appears in 1 contract
Samples: Credit Agreement (nCino, Inc.)
Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan DocumentDocuments, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) Banks notify the Administrative Agent (with, in the case of the Required LendersBanks, a copy to the Borrower) that the Borrower or Required Lenders Banks (as applicable) have determined, that:
(i) (i) adequate and reasonable means do not exist for ascertaining SOFR and one LIBOR for any requested Interest Periodone month, three month and six month interest periods of Term SOFR, including including, without limitation, because SOFR or the Term LIBORTerm SOFR Screen Rate, as applicable, Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME (ii) theCME or any successor administrator of the Term LIBORTerm SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, LIBOR or one the LIBORone month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate, Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of loans (U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide SOFR or such interest periods of Term SOFR, as applicable, SOFR after such specific date (the latest date on 68 which SOFR or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); , or;
(iii) syndicated loans currently being executed, or that include language similar to that contained in this Section 3.02, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, then, reasonably promptly after such determination byNotwithstanding anything to the contrary herein, (i) if the Administrative Agent or receipt by the Administrative Agent of such notice, as applicabledetermines that Daily SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 3.03(b)(i3.02(b)(i) or (ii) have occurred with respect to Daily SOFR or the Successor Rate then in effect, thenthen in each case, the Administrative Agent and the Borrower may amend this Agreement solely to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein),solely for the purpose of replacing Term SOFR, Daily Simple SOFR and/or Term SOFR, or any then current Successor Rate, Rate in accordance with this Section 3.03 3.02 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars United States for such alternative benchmarks, benchmarks (benchmark. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars United States for such benchmarksbenchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate, including for the avoidance of doubt, any adjustment theretoa “LIBOR and adjustments, shall constitute a “Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (as defined below) and any. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Banking Day after the Administrative Agent shall have posted such proposed amendment to all Lenders Banks and the Borrowers Borrower unless, prior to such time, Lenders Banks comprising the Required Lenders Banks have delivered to the Administrative Agent written notice that such Required Lenders object Banks do not acceptobject to such amendment. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate. Such LIBOR Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Bank. Thereafter, (x) the obligation of the Banks to make or maintain LIBOR Loans shall be suspended, (to the extent of the affected LIBOR Loan or Interest Periods), and (y) the LIBOR Base Rate component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a borrowing of, Conversion or Continuation of LIBOR Loans (to the extent of the affected LIBOR Loan or Interest Periods) or, failing that, will be deemed to have converted such request for a LIBOR Loan into a request for a borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein. Notwithstanding anything else herein, if at any time definition of LIBORtime any Successor Rate as shall provide that in no event shall such LIBOR Successor Rateas so determined would otherwise be less than zerozero for%, the Successor Rate will be deemed to be zero zero% for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
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Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan DocumentDocuments, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify(ies) Banks notify the Administrative Agent (with, in the case of the Required LendersBanks, a copy to the Borrower) that the Borrower or Required Lenders Banks (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining SOFR and one month, three month and six month interest periods of Term SOFR, including including, without limitation, because SOFR or the Term SOFR Screen Rate, as applicable, Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which SOFR, or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate, Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide SOFR or such interest periods of Term SOFR, as applicable, SOFR after such specific date (the latest date on 68 which SOFR or one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); orthen, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily SOFR for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate). If the Successor Rate is Daily SOFR, all interest payments will be payable on a monthly basis. Notwithstanding anything to the contrary herein, (i) if the Administrative Agent determines that Daily SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 3.03(b)(i3.02(b)(i) or (ii) have occurred with respect to Daily SOFR or the Successor Rate then in effect, thenthen in each case, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing Term SOFR, Daily Simple SOFR and/or Term SOFR, or any then current Successor Rate, Rate in accordance with this Section 3.03 3.02 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars United States for such alternative benchmarks, benchmark. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the U.S. and denominated in U.S. dollars United States for such benchmarksbenchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate, including for the avoidance of doubt, any adjustment theretorate and adjustments, shall constitute a “Successor Rate”). Any such amendment shall become effective at 5:00 p.m. on the fifth Business Banking Day after the Administrative Agent shall have posted such proposed amendment to all Lenders Banks and the Borrowers Borrower unless, prior to such time, Lenders Banks comprising the Required Lenders Banks have delivered to the Administrative Agent written notice that such Required Lenders Banks object to such amendment. The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender Bank of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zerozero%, the Successor Rate will be deemed to be zero zero% for the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate 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; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders Banks reasonably promptly after such amendment becomes effective.
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Samples: Revolving Loan Agreement (Avalonbay Communities Inc)
