Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1), if the Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent or Required Lenders notify the Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agent) that the Borrowers’ Agent or Required Lenders (as applicable) have determined, that: (i) adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest Period, including because the Term SOFR Screen 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 Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three 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 satisfactory to the Agent that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three 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”); then, on a date and time determined by the 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 other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), for any payment period for interest calculated that can be determined by the Agent, in each case, without any amendment to, or further action or consent of any other party to, any Loan Document. If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans will be payable on a monthly basis. (b) 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 all purposes of the Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Herc Holdings Inc), Credit Agreement (Herc Holdings Inc)
Successor Rate. (a) If in connection with any request for a Term Rate Advance, a Daily Simple SOFR Advance or an Alternative Currency Daily Rate Advance or a conversion of Base Rate Advances to Term Advances or a continuation of any of such Advances, as applicable, (i) the Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate for the Relevant Rate for the applicable Committed Currency (or other Foreign Currency, as applicable) has been determined in accordance with Section 1.16(b) and the circumstances under clause (i) of Section 1.16(b) or the Scheduled Unavailability Date has occurred with respect to such Relevant Rate (as applicable), or (B) adequate and reasonable means do not otherwise exist for determining the Relevant Rate for the applicable Committed Currency (or other Foreign Currency, as applicable) for any determination date(s) or requested Interest Period, as applicable, with respect to a proposed Term Rate Advance, Daily Simple SOFR Advance or an Alternative Currency Daily Rate Advance or in connection with an existing or proposed Base Rate Advance, or (ii) the Agent or the Required Lenders determine that for any reason that the Relevant Rate with respect to a proposed Advance denominated in a Committed Currency (or other Foreign Currency, as applicable) for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Lenders of funding such Advance, the Agent will promptly so notify the Company and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Advances in the affected currencies, as applicable, or to convert Base Rate Advances to Term Advances, shall be suspended in each case to the extent of the affected Term Rate Advances, Daily Simple SOFR Advances, Alternative Currency Daily Rate Advances or Interest Period or determination date(s), as applicable, and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 1.16(a), until the Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrowers may revoke any pending request for a Borrowing of, or conversion to Term Advances, or Borrowing of, or continuation of Term Rate Loans, Daily Simple SOFR Advances or Alternative Currency Daily Rate Advances to the extent of the affected Term Rate Advances, Daily Simple SOFR Advances, Alternative Currency Daily Rate Advances or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Advances denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii) (A) any outstanding Term Advances shall be deemed to have been converted to Base Rate Advances immediately and (B) any outstanding affected Term Rate Advances, Daily Simple SOFR Advances and Alternative Currency Daily Rate Advances, at the Company’s election, shall either (1) be converted into a Borrowing of Base Rate Advances denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Term Rate Advance, Daily Simple SOFR Advance or Alternative Currency Daily Rate Advance immediately, in the case of an Alternative Currency Daily Rate Advance of a Daily Simple SOFR Advance, or at the end of the applicable Interest Period, in the case of a Term Rate Advance, or (2) be prepaid in full immediately, in the case of an Alternative Currency Daily Rate Advance or a Daily Simple SOFR Advance, or at the end of the applicable Interest Period, in the case of a Term Rate Advance; provided that if no election is made by the Company (x) in the case of an Alternative Currency Daily Rate Advance or a Daily Simple SOFR Advance, by the date that is three Business Days after receipt by the Company of such notice or (y) in the case of a Term Rate Advance, by the last day of the current Interest Period for the applicable Term Rate Advance, the Company shall be deemed to have elected clause (1) above.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1)Documents, if the Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Company or Required Lenders notify the Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agentthe Company) that the Borrowers’ Agent Company or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining Term SOFR the Relevant Rate for the applicable Committed Currency (or other Foreign Currency, as applicable) because none of the tenors of such Relevant Rate (including any requested Interest Period, including because the Term SOFR Screen Rate forward-looking term rate thereof) 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 Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, (as defined below) has made a public statement identifying a specific date after which oneall tenors of the Relevant Rate for a Committed Currency (or other Foreign Currency, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate as applicable) (including any forward-looking term rate thereof) shall or will no longer be representative or made available available, or permitted to be used for determining the interest rate of U.S. dollar loans denominated syndicated loansin such Committed Currency (or other Foreign Currency, as applicable), or shall or will otherwise cease, providedprovided that, thatin each case, at the time of such statement, there is no successor administrator that is satisfactory to the Agent that will continue to provide such interest periods representative tenor(s) of Term SOFR after the Relevant Rate for such specific date Committed Currency (or other Foreign Currency, as applicable) (the latest date on which oneall tenors of the Relevant Rate for such Committed Currency (or other Foreign Currency, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate as applicable) (including any forward-looking term rate thereof) 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 the Relevant Rate for a Committed Currency (or other Foreign Currency, as applicable); or if the events or circumstances of the type described in Section 1.16(b)(i), (ii) or (iii) have occurred with respect to the Successor Rate then in effect, then, the Agent and the Company may amend this Agreement solely for the purpose of replacing the Relevant Rate for a Committed Currency (or other Foreign Currency, as applicable) or any then current Successor Rate for a Committed Currency (or other Foreign Currency, as applicable) in accordance with this Section 1.16 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 such Committed Currency (or other Foreign Currency, as applicable) 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 such Committed Currency (or other Foreign Currency, as applicable) for such benchmarks, which adjustment or method for calculating such adjustment shall be published on a date and time determined an information service as selected by the Agent from time to time in its reasonable discretion and may be periodically updated (and any such dateproposed rate, including for the “Term SOFR Replacement Date”)avoidance of doubt, which date shall be at the end of an Interest Period or on the relevant interest payment dateany adjustment thereto, 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 other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Agent shall have posted such proposed amendment to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders object to such amendment. The Agent will promptly (in one or more notices) notify the Company 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 any payment period for interest calculated that can the Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Agent, in each case, without any amendment to, or further action or consent of any other party to, any Loan Document. If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans will be payable on a monthly basis.
(b) 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 all the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate, the 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 Agent shall post each such amendment implementing such Conforming Changes to the Company and the Lenders reasonably promptly after such amendment becomes effective.
Appears in 2 contracts
Samples: Syndicated Facility Agreement (Sealed Air Corp/De), Syndicated Facility Agreement (Sealed Air Corp/De)
Successor Rate. (aA) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1), Documents:
a. if the Agent determines in its reasonable discretion (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Borrowers or Required Lenders notify the Agent (with, in the case of the Required Lenders, a copy to the Borrowers’ Agent) that the Borrowers’ Agent Borrowers or Required Lenders (as applicable) have reasonably determined, that:
(i) that adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest PeriodSOFR, including including, without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor b. the administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Agent, CME the Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available 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, provided that, at the time of such statement, there is no successor administrator that is reasonably satisfactory to the Agent Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitelysuch specific date, the “Scheduled Unavailability Date”); or
c. the administrator of Term SOFR or a Governmental Authority having jurisdiction over such administrator has made a public statement announcing that all tenors of Term SOFR are no longer representative; or
d. syndicated loans currently being executed, or that include language similar to that contained in this Section 2.20(b), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace Term SOFR; then, in the case of clauses (a)-(c) above, on a date and time determined by the 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, date for interest calculated and shall occur reasonably promptly upon the occurrence of any of the events or circumstances under clauses (a), (b) or (c) above and, solely with respect to clause (iid) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), alternative set forth below for any payment period for interest calculated that can be determined by the Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan DocumentDocument (the “Successor Rate”; and any such rate before giving effect to the Related Adjustment, the “Pre-Adjustment Successor Rate”): the sum of (x) the alternate benchmark rate that has been selected by the Agent as the replacement for Term SOFR for the applicable tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for Term SOFR for dollar-denominated syndicated credit facilities at such time and (y) the Related Adjustment. If In addition, in the case of clause (d) above, the Borrowers and Agent may amend this Agreement solely for the purpose of replacing Term SOFR under this Agreement and under any other Loan Document in accordance with the definition of “Successor Rate” and such amendment will become effective at 5:00 p.m., on the fifth Business Day after the Agent shall have notified all Lenders and the Borrowers of the occurrence of the circumstances described in clause (d) above unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders object to the implementation of the Successor Rate pursuant to such clause. The Agent will promptly (in one or more notices) notify the Borrower and each Lender of (x) any occurrence of any of the events, periods or circumstances under clauses (a) through (c) above, (y) the Replacement Date and (z) the Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is Daily Simple SOFR plus not administratively feasible for the SOFR AdjustmentAgent, all interest accruing on such Successor Rate shall be applied in a manner as otherwise reasonably determined by the affected Loans will be payable on a monthly basis.
(b) 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 all the purposes of this Agreement and the other Loan Documents.
(B) In connection with the implementation of a Successor Rate, the Agent will have the right to make Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Successor Rate 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 Agent shall post each such amendment implementing such Successor Rate Conforming Changes to the Borrowers and the Lenders reasonably promptly after such amendment becomes effective. If the events or circumstances of the type described in Section 2.20(b)(1)(a)-(c) have occurred with respect to the Successor Rate then in effect, then the successor rate thereto shall be determined in accordance with the definition of “Successor Rate.”
(C) Notwithstanding anything to the contrary herein, (A) after any such determination by the Agent or receipt by the Agent of any such notice described under Section 2.20(b)(1)(a)-(c), as applicable, if the Agent determines that no Successor Rates is available on or prior to the Replacement Date, (B) if the events or circumstances described in Section 2.20(b)(1)(d) have occurred but no Successor Rate is available, or (C) if the events or circumstances of the type described in Section 2.20(b)(1)(a)-(c) have occurred with respect to the Successor Rate then in effect and the Agent determines that no Successor Rate is available, then in each case, the Agent and the Borrowers may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 2.20(b) at the end of any relevant interest payment date or payment period for interest calculated, as applicable, with another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any Related Adjustments and any other mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate 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 Agent shall have delivered such proposed amendment to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders object to such amendment.
(D) If, at the end of any relevant interest payment date or payment period for interest calculated, no Successor Rate has been determined in accordance with the preceding paragraphs of this Section 2.20(b) and the circumstances under 2.20(b)(1)(a) or (c) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Agent will promptly so notify the Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or maintain Term SOFR Loans shall be suspended (to the extent of the affected Term SOFR Loans, interest payment dates or payment periods), until the Successor Rate has been determined in accordance with the preceding paragraphs of this Section 2.20(b). Upon receipt of such notice, the Borrowers may revoke any pending request for a Borrowing of or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans, interest payment dates or payment periods) or, failing that, will be deemed to have converted such request into a request for a Base Rate Loans (which Base Rate Loans shall, notwithstanding Section 2.4(a) (but subject to Section 2.4(b)), bear interest on the unpaid principal balance thereof at a rate per annum equal to at the Base Rate plus the Applicable Margin).
Appears in 1 contract
Samples: Credit Agreement (Lendway, Inc.)
Successor Rate. (a) Notwithstanding anything the foregoing or any other provisions of this Agreementanything to the contrary in this Agreement or any other Loan Documents (including Section 12.1)Documents, if at any time the Agent Lender determines (which Lender determination shall be conclusive absent manifest demonstrablemanifest error), or the Borrowers’ Agent or Required Lenders notify Borrower notifies the Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agent) Lender that the Borrowers’ Agent or Required Lenders (as applicable) have Borrower has determined, thatthat :
(i) the circumstances set forth in clause (a) above have arisen adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest PeriodSOFR, including including, without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary, ; or
(ii) CME or any successor the circumstances set forth in clause (a) above have not arisen but the supervisor for the administrator of the Term London interbank offered rateTerm SOFR Screen Rate or a Governmental Authority having jurisdiction over Agent, CME the 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 one, three and six month interest periods of Term such rateTerm SOFR or the Term SOFR Screen Rate shall or will no longer be made available available, or permitted to be used for determining the interest rate rates forrate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, provided, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Lender that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitelysuch specific date, the “Scheduled Unavailability Date”); then, on a date and time determined by or
(iii) loan agreements the Agent (any such date, the “administrator of Term SOFR Replacement Date”or a Governmental Authority having jurisdiction over such administrator has made a public statement announcing that all tenors of Term SOFR are no longer representative; or
(iv) bilateral loans currently being executed, or that include language similar to that contained in this Section 8.3, are being executed or amended (as applicable), which date to incorporate or adopt a new benchmark interest rate to replace such rate, then the Lender and the Borrower shall be endeavor to establish an alternate rate of interest to the London interbank offered rate for purposes of the Loan Documents that gives due consideration to the then prevailing market convention for determining a rate of interest for loans in the United States at such time, and shall enter into an amendment to this Agreement and the end of an Interest Period or on the relevant interest payment dateother Loan Documents, as applicable, for to reflect such alternate rate of interest calculated and, solely with respect and such other related changes to clause this Agreement and the other Loan Documents as may be applicable (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), for any payment period for interest calculated that can be determined by the Agent, in each caseincluding, without any amendment tolimitation, or further action or consent implementation of any other party to, any Loan Document. If the Successor Rate is Daily Simple SOFR plus the SOFR a Benchmark Replacement Adjustment, all interest accruing on the affected Loans will be payable on a monthly basis.
(b) Notwithstanding anything else herein); provided that, 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 all purposes of the Loan Documents.such alternate rateTerm SOFR;
Appears in 1 contract
Samples: Credit Agreement (Weyco Group Inc)
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1)Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agentthe Borrower) that the Borrowers’ Agent Borrower or Required Lenders (as applicable) have determined, thatthat if:
(i) adequate and reasonable means do not exist for ascertaining one (1) month, three (3) month and six (6) month interest periods (as applicable) of Term SOFR for any requested Interest PeriodSOFR, including including, without limitation, because the Term SOFR Screen 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 Agent, Administrative Agent or CME 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 oneone (1) month, three (3) month and six (6) month interest periods (as applicable) of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available 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, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which onesuch one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a time and 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 other applicable Loan Document with Daily Simple SOFR plus the applicable SOFR Adjustment (the “Successor Rate”), 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 DocumentDocument (the “Successor Rate”). If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans payments will be payable on a monthly basis.
(b) basis on the date that is the monthly anniversary of the applicable Borrowing. Notwithstanding anything else to the contrary herein, (x) if at any time any Successor Rate as so determined would otherwise be less than zeroAdministrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (y) if the events or circumstances of the type described in clauses (i) or (ii) above have occurred with respect to Daily Simple SOFR or the Successor Rate then in effect, then in each case, Administrative Agent and Borrower may amend this Agreement solely for the purpose of replacing Term SOFR, Daily Simple SOFR, and/or any then current Successor Rate in accordance with this Section 5.03 at the end of any Interest Period, relevant interest payment date or any payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar Dollar-denominated credit facilities syndicated and agented in the United States 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 Dollar-denominated credit facilities syndicated and agented in the United States for such benchmarks, 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. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment will be deemed become effective at 5:00 p.m. on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to be zero for all purposes of the Loan DocumentsLenders and Borrower unless, prior to such time, Lenders comprising Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to such amendment.
Appears in 1 contract
Samples: Delayed Draw Term Loan Credit Agreement (Devon Energy Corp/De)
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents Document (including Section 12.19.1 hereof), if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Company or the Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agentthe Company) that the Borrowers’ Agent Company or the Required Lenders (as applicable) have determined, that:
: (ia) adequate and reasonable means do not exist for ascertaining Term SOFR the Applicable Reference Rate for an Applicable Currency for any requested Interest Period, including Period because the Term SOFR Screen Rate for such Applicable Currency is not available or published on a current basis and such circumstances are unlikely to be temporary; or
, (iib) CME or any successor the administrator of the Term SOFR Screen Rate for an Applicable Currency or a Governmental Authority having jurisdiction over Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, the Administrative Agent has made a public statement identifying a specific date after which one, three and six month interest periods of Term SOFR the Applicable Reference Rate for an Applicable Currency or the Term SOFR Screen Rate for an Applicable Currency shall or will no longer be made available available, or permitted to be used for determining the interest rate of U.S. dollar loans denominated syndicated loans, or shall or will otherwise cease, in such Applicable Currency; provided, that, in each case, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Administrative Agent, that will continue to provide the Applicable Reference Rate for such interest periods of Term SOFR Applicable Currency after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitelysuch specific date, the “Scheduled Unavailability Date”); , or (c) syndicated loans currently being executed, or that include language similar to that contained in this Section 2.38, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Applicable Reference Rate, then, on a date and time determined reasonably promptly after such determination by the Administrative Agent (any or receipt by the Administrative Agent of such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment datenotice, as applicable, the Administrative Agent and the Company may amend this Agreement solely for interest calculated andthe purpose of replacing the Applicable Reference Rate for the Applicable Currency in accordance with this Section 2.38 with an alternate benchmark rate giving due consideration to any evolving or then existing convention for similar syndicated credit facilities syndicated in the U.S. and denominated in the Applicable Currency for such alternative benchmarks (any such proposed rate, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the a “Successor Rate”), for any payment period for interest calculated that can be determined by the Agent) 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 syndicated credit facilities syndicated in the U.S. and denominated in the Applicable Currency for such benchmarks, each of which adjustments or methods for calculating such adjustments shall be published on one or more information services as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated, and any such amendment shall become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Company unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment. Such Successor Rate for the Applicable Currency 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 for such Applicable Currency shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. If no Successor Rate has been determined and the circumstances under clause (a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Company and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Loans shall be suspended, (to the extent of the affected Eurocurrency Loans or Interest Periods), and (y) the Eurocurrency Rate component shall no longer be utilized in determining the ABR. Upon receipt of such notice, (i) the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Loans (to the extent of the affected Eurocurrency Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans (subject to the foregoing clause (y)) in the amount specified therein and (ii) (A) any outstanding affected Eurocurrency Rate Loans denominated in Dollars will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period and (B) any outstanding affected Eurocurrency Rate Loans denominated in an Alternative Currency, at the applicable Borrower’s election, shall either (1) be converted into a Borrowing of ABR Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding Eurocurrency Rate Loan at the end of the applicable Interest Period or (2) be prepaid at the end of the applicable Interest Period in full; provided, that, if no election is made by the applicable Borrower by the earlier of (x) the date that is three (3) Business Days after receipt by the Company of such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Rate Loan, the applicable Borrower shall be deemed to have elected clause (1) above. Notwithstanding anything else herein, any definition of Successor Rate shall provide that in no event shall such Successor Rate be less than zero for purposes of this Agreement. In connection with the implementation of a Successor Rate for any currency, the Administrative Agent will have the right to make Successor Rate Conforming Changes with respect to such currency from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Successor Rate Conforming Changes will become effective without any amendment to, or further action or consent of any other party toto this Agreement; provided, that, with respect to any Loan Document. If such amendment effected, the Administrative Agent shall post each such amendment implementing such Successor Rate is Daily Simple SOFR plus Conforming Changes for the SOFR Adjustment, all interest accruing on Applicable Currency to the affected Loans will be payable on a monthly basisLenders reasonably promptly after such amendment becomes effective.
(bt) 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 all purposes Clause (e) of Section 3.12 of the Loan Documents.Credit Agreement is hereby amended to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Kennametal Inc)
Successor Rate. (a) Notwithstanding anything to the contrary herein or in this Agreement or any other Loan Documents (including Section 12.1)Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers’ AgentBorrower) that the Borrowers’ Agent Borrower or Required Lenders (as applicable) have determined, that:
: (ia) adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest Periodone (1) month interest periods of BSBY, including including, because the Term SOFR BSBY Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
or (iib) CME Bloomberg or any successor administrator of the Term SOFR BSBY Screen Rate or a Governmental Authority having jurisdiction over Agent, CME Administrative Agent or Bloomberg or such administrator with respect to its publication of Term SOFRBSBY, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three and six one (1) month interest periods of Term SOFR BSBY or the Term SOFR BSBY Screen Rate shall or will no longer be made available 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, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Administrative Agent, that will continue to provide such interest periods of Term SOFR BSBY after such specific date (the latest date on which one, three and six one (1) month interest periods of Term SOFR BSBY or the Term SOFR BSBY Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a time and date and time determined by the Administrative Agent (any such date, the “Term SOFR BSBY 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 (iib) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), for any payment period for interest calculated that can be determined by the Agent, in each case, without any amendment to, or further action or consent of any other party to, any Loan Document. If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans will be payable on a monthly basis.
(b) 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 all purposes of the Loan Documents.Scheduled
Appears in 1 contract
Samples: Loan Agreement (Pacific Oak Strategic Opportunity REIT, Inc.)
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.19.02 hereof), if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agentthe Borrower) that the Borrowers’ Agent Borrower or Required Lenders (as applicable) have determined, that:
(ia) adequate and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR for any requested Interest PeriodSOFR, including including, without limitation, because the Term SOFR Screen Rate is not 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 Authority having jurisdiction over Agent, CME the Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which oneone 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 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, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which oneone 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”); then, 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 (iib) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), 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 DocumentDocument (the “Successor Rate”). If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans payments will be payable on a monthly basis.
. Notwithstanding anything to the contrary herein, (i) if the Administrative Agent 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 clauses (a) or (b) of this Section 2.19 have occurred with respect to the Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 2.19 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such alternative 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 Dollar denominated credit facilities syndicated and agented in the United States for such benchmark, 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 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 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 all 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. For purposes of this Section 2.19, those Lenders that either have not made, or do not have an obligation under this Agreement to make, the relevant Advances in Dollars shall be excluded from any determination of Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Successor Rate. The Administrative Agent will promptly (ain one or more notices) Notwithstanding anything notify the Lead Borrower and each Lender of the implementation of any Term SOFR Successor Rate or Canadian B/A Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the contrary in this Agreement or any other Loan Documents (including Section 12.1)extent such market practice is not administratively feasible for the Administrative Agent, if the Agent determines (which determination such Successor Rate shall be conclusive absent manifest error), or the Borrowers’ Agent or Required Lenders notify the Agent (with, applied in the case of the Required Lenders, a copy to Borrowers’ Agent) that the Borrowers’ Agent or Required Lenders (manner as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest Period, including because the Term SOFR Screen 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 Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three 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 satisfactory to the Agent that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three 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”); then, on a date and time reasonably determined by the 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 other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), 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, any Loan Document. If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans will be payable on a monthly basis.
(b) Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero0.00%, the Successor Rate will be deemed to be zero 0.00% for all the purposes of this Agreement and the Loan other Credit 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 Credit 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 Lead Borrower and the Lenders reasonably promptly after such amendment becomes effective.
(e) If, at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, no LIBOR Successor Rate has been determined in accordance with clauses (c) or (d) of this Section 3.05 and the circumstances under clauses (c)(i) or (c)(iii) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Lead Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans, Interest Periods, interest payment dates or payment periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the Base Rate, until the LIBOR Successor Rate has been determined in accordance with clauses (c) or (d). Upon receipt of such notice, the Lead Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans, Interest Periods, interest payment dates or payment periods) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.For purposes of this Section 3.05, those Lenders that either
Section 4. [Reserved].
Appears in 1 contract
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.113.1), if the Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Borrower or Required Lenders notify the Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agentthe Borrower) that the Borrowers’ Agent Borrower or Required Lenders (as applicable) have determined, that:
(ia) adequate and reasonable means do not exist for ascertaining one (1) month, three (3) month and six (6) month interest periods of Term SOFR for any requested Interest PeriodSOFR, including including, without limitation, because the Term SOFR Screen Rate is not 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 Authority having jurisdiction over Agent, CME the Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which oneone (1) month, three (3) month and six (6) month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be representative or made available 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, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Agent, that will continue to provide such representative interest periods of Term SOFR after such specific date (the latest date on which oneone (1) month, three (3) month and six (6) month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a date and time determined by the 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 (iib) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), for any payment period for interest calculated that can be determined by the Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan DocumentDocument (the “Successor Rate”). If the Successor Rate is Daily Simple SOFR plus the SOFR AdjustmentSOFR, all interest accruing on the affected Loans payments will be payable on a monthly basis.
. Notwithstanding anything to the contrary herein, (i) if the Agent 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 the clause (a) or (b) of the first sentence of this Section 5.7 have occurred with respect to the Successor Rate then in effect, then in each case, the Agent and the Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 5.7 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 prevailing market convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then prevailing market convention for similar Dollar denominated credit facilities syndicated and agented in the United States for such benchmark. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders object to such amendment. The 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 Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the 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 all the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate, the 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 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: Amendment and Restatement Agreement (United Rentals North America Inc)
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1)If, if the Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent or Required Lenders notify the Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agent) that the Borrowers’ Agent or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest Period, including because the Term SOFR Screen 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 Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one, three 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 satisfactory to the Agent that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three 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”); then, on a date and time determined by the Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an any Interest Period or on the Period, relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (iidate or(f) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the “Successor Rate”), for any payment period for interest calculated that can be determined by the Agentcalculated, in each case, without any amendment to, or further action or consent of any other party to, any Loan Document. If the no Term SOFR Successor Rate is Daily Simple or Successor Rate has been determined in accordance with clauses (c), (d) or (e) of this Section 3.03 and the circumstances under clauses (c)(i) or (c)(iii) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Company and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans, Term SOFR plus Loans and XXXXX Rate Loans shall be suspended, (to the SOFR Adjustment, all interest accruing on extent of the affected Eurocurrency Rate Loans, Term SOFR Loans will and XXXXX Rate Loans, Interest Periods, interest payment dates or payment periods), and (y) the Term SOFR component shall no longer be payable on a monthly basis.
(b) Notwithstanding anything else hereinutilized in determining the Base Rate, if at any time any until the applicable Term SOFR Successor Rate as so has been determined would otherwise be less than zeroin accordance with clauses (c), (d) or (e). Upon receipt of such notice with respect to Term SOFR Loans, the Successor Rate applicable Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans, Interest Periods, interest payment dates or payment periods) or, failing that, will be deemed to be zero have converted such request into a request for all purposes a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein. Upon receipt of such notice with respect to Eurocurrency Rate Loans or XXXXX Rate Loans, (i) the applicable Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or XXXXX Rate Loans in each such affected Alternative Currency (to the extent of the affected Eurocurrency Rate Loans, XXXXX Rate Loans or Interest Periods) or, failing that, will be deemed to have converted each such request into a request for a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii) any outstanding affected XXXXX Rate Loans or Eurocurrency Rate Loans denominated in an Alternative Currency, at the Company’s election, shall either (1) be converted into a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such outstanding XXXXX Rate Loan Documentsor Eurocurrency Rate Loan at the end of the applicable Interest Period or (2) be prepaid at the end of the applicable Interest Period in full; provided that if no election is made by the Company 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 XXXXX Rate Loan or Eurocurrency Rate Loan, the Company shall be deemed to have elected clause (1) above. Increased Costs; Reserves on Eurocurrency Rate Loans, Term SOFR Loans,3.04 XXXXX Rate Loans and Daily Simple SOFR Loans.
Appears in 1 contract
Samples: Sixth Amendment to Amended and Restated Credit Agreement (WEX Inc.)
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1)Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers’ AgentBorrower) that the Borrowers’ Agent Borrower or Required Lenders (as applicable) have determined, that:
(ia) adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest Period, including including, without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(iib) CME or any successor the administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, the Administrative Agent has made a public statement identifying a specific date after which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available 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, ; provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitelysuch specific date, the “Scheduled Unavailability Date”); , or
(c) syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace Term SOFR, then, on a date and time determined reasonably promptly after such determination by the Administrative Agent (any or receipt by the Administrative Agent of such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment datenotice, as applicable, the Administrative Agent and the Borrower may amend this Agreement solely for interest calculated the purpose of replacing Term SOFR in accordance with this Section 3.08 to replace Term SOFR with another alternate benchmark rate, giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks and, solely with respect in each case, including any mathematical or other adjustments to clause (ii) abovesuch benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such benchmarks, no later than which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Scheduled Unavailability Date, Term SOFR will Administrative Agent from time to time in its reasonable discretion and may be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment periodically updated (the “Adjustment;” and any such proposed rate, a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower 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. Such 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 any payment period for interest calculated that can the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Lenders reasonably promptly after such amendment becomes effective. If no Successor Rate has been determined and the circumstances under clause (a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Term SOFR Loans shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) Term SOFR shall no longer be utilized in each casedetermining the Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a Committed Loan Notice for Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein. Notwithstanding anything else herein, any definition of Successor Rate shall provide that in no event shall such Successor Rate be less than zero for purposes of this Agreement. In connection with the implementation of a Successor Rate, the Administrative Agent and the Company 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 amendment to, or further action or consent of any other party to, any Loan Document. If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans will be payable on a monthly basisto this Agreement.
(b) 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 all purposes of the Loan Documents.
Appears in 1 contract
Samples: Refinancing Amendment to Credit Agreement (Ciena Corp)
Successor Rate. (a) Notwithstanding anything to the contrary herein or in this Agreement or any other Loan Documents (including Section 12.1)Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers’ AgentBorrower) that the Borrowers’ Agent Borrower or Required Lenders (as applicable) have determined, that:
(ia) adequate and reasonable means do not exist for ascertaining Term SOFR for any requested Interest Periodone (1) month interest periods of BSBY, including including, because the Term SOFR BSBY Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or;
(iib) CME Bloomberg or any successor administrator of the Term SOFR BSBY Screen Rate or a Governmental Authority having jurisdiction over Agent, CME 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 one, three and six one (1) month interest periods of Term SOFR BSBY or the Term SOFR BSBY Screen Rate shall or will no longer be representative or made available available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or will otherwise cease, providedor that such interest periods or BSBY Screen Rate have failed to comply with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Administrative Agent, that will continue to provide such representative interest periods of Term SOFR BSBY after such specific date (the latest date on which one, three and six one (1) month interest periods of Term SOFR BSBY or the Term SOFR BSBY Screen Rate are no longer representative or available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a time and date and time determined by the Administrative Agent (any such date, the “Term SOFR BSBY Replacement Date”), which date shall be at the end of an Interest Period or on the relevant Interest Rate Change Date or interest payment date, as applicable, for interest calculated and, solely with respect to clause (iib) above, no later than the Scheduled Unavailability Date, Term SOFR the BSBY Screen Rate will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus with, subject to the SOFR Adjustment (proviso below, the “Successor Rate”), first available alternative set forth in the order below 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 DocumentDocument (the “Successor Rate”):
(i) Term SOFR plus the SOFR Adjustment; and
(ii) Daily Simple SOFR plus the SOFR Adjustment; provided that, if initially the BSBY Screen Rate is replaced with the rate contained in clause (ii) above (Daily Simple SOFR plus the SOFR Adjustment) and subsequent to such replacement, Administrative Agent determines that Term SOFR has become available and is administratively feasible for Administrative Agent in its sole discretion, and Administrative Agent notifies Borrower and each Lender of such availability, then from and after the relevant Interest Rate Change Date or interest payment date or the beginning of the relevant payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Successor Rate shall be Term SOFR plus the SOFR Adjustment. If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans payments will be payable on a monthly basis.
. Notwithstanding anything to the contrary herein, (A) if Administrative Agent determines that neither of the alternatives set forth in clauses (i) and (ii) above is available on or prior to the BSBY Replacement Date or (B) if the events or circumstances of the type described in Section 2.4(a) or (b) have occurred with respect to the Successor Rate then in effect, then in each case, Administrative Agent and Borrower may amend this Agreement solely for the purpose of replacing BSBY or any then current Successor Rate in accordance with this Section at any relevant interest payment date, or the end of any relevant interest period or payment period for interest calculated, as applicable, with another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor Rate. Any such amendment shall become effective at 5:00 p.m. Administrative Agent’s Time on the fifth (5th) Business Day after Administrative Agent shall have posted such proposed amendment to all Lenders and Borrower unless, prior to such time, Lenders comprising Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to such amendment. Administrative Agent will promptly (in one or more notices) notify 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 Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zerozero percent (0.00%), the Successor Rate will be deemed to be zero percent (0.00%) for all the purposes of this Agreement and the other Loan Documents. In connection with the implementation of a Successor Rate, 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, Administrative Agent shall post each such amendment implementing such Conforming Changes to Borrower and the Lenders reasonably promptly after such amendment becomes effective.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1)Document, if the Administrative Agent determines (which determination shall will be conclusive absent manifest error), or the Borrowers’ Agent Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrowers’ Agentthe Borrower) that the Borrowers’ Agent Borrower or Required Lenders (as applicable) have determined, thatthat if:
(i) adequate and reasonable means do not exist for ascertaining one (1) month, three (3) month and six (6) month interest periods (as applicable) of Term SOFR for any requested Interest PeriodSOFR, including because the Term SOFR Screen 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 Agent, Administrative Agent or CME 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 oneone (1) month, three (3) month and six (6) month interest periods (as applicable) of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available 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, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent Administrative Agent, that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which one, three and six month such interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a time and 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 other applicable Loan Document with Daily Simple SOFR plus the applicable SOFR Adjustment (the “Successor Rate”), 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 DocumentDocument (the “Successor Rate”). If Notwithstanding anything to the contrary herein, (x) if Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (y) if the events or circumstances of the type described in clauses (i) or (ii) above have occurred with respect to Daily Simple SOFR or the Successor Rate is then in effect, then in each case, Administrative Agent and Borrower may amend this Agreement solely for the purpose of replacing Term SOFR, Daily Simple SOFR plus SOFR, and/or any then current Successor Rate in accordance with this Section 5.03 at any relevant interest payment date or the SOFR Adjustmentend of any payment period for interest calculated, all interest accruing as applicable, with another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar Dollar-denominated syndicated credit facilities for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar Dollar-denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment will become effective at 5:00 p.m. on the affected Loans will be payable on a monthly basisfifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all Lenders and Borrower unless, prior to such time, Lenders comprising Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to such amendment.
(b) 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 all purposes of the Loan Documents.
Appears in 1 contract
Successor Rate. (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents (including Section 12.1)Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers’ Agent or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, with a copy to Borrowers’ Agentthe Borrower) that the Borrowers’ Agent or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining Term SOFR SOFR, XXXXX or the EURIBOR Rate for any requested Interest PeriodPeriod for any currency, including including, without limitation, because Term SOFR, XXXXX or the Term SOFR Screen EURIBOR Rate for such currency is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor the supervisor for the administrator of Term SOFR, XXXXX or the Term SOFR Screen EURIBOR Rate or a Governmental Authority having jurisdiction over Agent, CME or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, the Administrative Agent has made a public statement identifying a specific date after which oneTerm SOFR, three and six month interest periods of Term SOFR XXXXX or the Term SOFR Screen EURIBOR Rate for such currency shall or will no longer be made available available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, then, after such determination by the Administrative Agent or shall or will otherwise cease, provided, that, at receipt by the time Administrative Agent of such statementnotice, there is no successor administrator satisfactory as applicable, the Administrative Agent and the Borrower may amend this Agreement to the Agent that will continue to provide such interest periods of replace Term SOFR after such specific date (the latest date on which oneSOFR, three and six month interest periods of Term SOFR XXXXX or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); then, on a date and time determined by the 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 dateEURIBOR Rate, as applicable, for interest calculated andsuch currency with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in the United States in lieu of Term SOFR, solely with respect to clause XXXXX or the EURIBOR Rate, as applicable (ii) aboveany such proposed rate, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other applicable Loan Document with Daily Simple SOFR plus the SOFR Adjustment (the a “Successor Rate”), for together with any payment period for interest calculated proposed Successor Rate Conforming Changes and, notwithstanding anything to the contrary in Section 9.02, any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent notice that can be such Required Lenders do not accept such amendment. If no Successor Rate has been determined by and the Agentcircumstances under clause (i) above exist, the obligation of the Lenders to make or maintain Term SOFR Loans, Daily Simple RFR Loans or EURIBOR Rate Loans, as applicable, in each casethe relevant currency shall be suspended, without (to the extent of the affected Loans or Interest Periods). Upon receipt of such notice, the Borrower may revoke any amendment topending request for a Term SOFR Borrowing, Daily Simple RFR Borrowing or further action EURIBOR Rate Borrowing, as applicable, in the relevant currency of, conversion to or consent continuation of any other party toTerm SOFR Loans, any Loan DocumentDaily Simple RFR Loans or EURIBOR Rate Loans, as applicable, (to the extent of the affected Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans in Dollars in the amount specified therein (and, if the affected Borrowings are denominated in an Alternative Currency for which no EURIBOR Rate or RFR option is available as provided above, such Loans shall be redenominated in Dollars on the last day of the current Interest Period based on the Dollar Equivalent amount thereof on such date). If Notwithstanding the foregoing, the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest accruing on the affected Loans will be payable on a monthly basis.
(b) Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise shall not be less than zero, the Successor Rate will be deemed to be zero for all purposes of the Loan Documents.
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